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Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with theQuarterly Report of DC Brands International, Inc., a Colorado corporation (the “Company”), on Form 10-K for the period endedJune 30, 2012 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Bob Armstrong, Chief Financial Officer of the Company, certify, pursuant to Section 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge: The Report fully complies with the requirements of Section 13(a) and 15(d) of the Securities Exchange Act of 1934; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ Bob Armstrong Chief Financial Officer (Principal Financial and Accounting Officer) August 20, 2012

Filed Pursuant to Rule 424(b)(5) Registration No. 333-199303 PROSPECTUS SUPPLEMENT (to the Prospectus dated October 14, 2014) DATED June 25, 2015 6,800,000 Shares of Common Stock and Warrants to purchase up to 4,080,000 shares of Common Stock We are offering 6,800,000 shares of our common stock, par value $0.00001 per share, and warrants to purchase up to 4,080,000 shares of common stock at an exercise price of $2.85 per share of common stock pursuant to this prospectus supplement and the accompanying prospectus. The shares of common stock and warrants will be sold in units, with each unit consisting of one share of common stock and 0.6 warrant, where each whole warrant is exercisableto purchaseone share of common stock,and the shares of common stock and warrants immediately separable upon issuance.Each unit will be sold at a price of $2.50 per unit. Our common stock is listed on the NASDAQ Capital Market, or Nasdaq, under the symbol “PSTI” and on the Tel Aviv Stock Exchange under the symbol “PLTR.” On June 24, 2015, the last reported sale price for our common stock on the Nasdaq was $2.56 per share. There is no market through which the warrants may be sold and purchasers may not be able to resell the warrants purchased under this prospectus supplement. This may affect the pricing of the warrants in the secondary market, the transparency and availability of trading prices, the liquidity of such warrants, and the extent of issuer regulation. See “Risk Factors.” Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the heading “Risk Factors” beginning on page S-3 of this prospectus supplement and on page 1 of the accompanying prospectus. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus supplement or the accompanying prospectus is truthful or complete.Any representation to the contrary is a criminal offense. Maxim Group LLC. is acting as the sole placement agent on this transaction.The placement agent is not purchasing or selling any of these securities nor is the placement agent required to arrange for the sale of any specific number or dollar amount of securities, but has agreed to use its reasonable best efforts to arrange for the sale of the securities offered by this prospectus supplement.There is no required minimum number of shares that must be sold as a condition to completion of the offering.We have agreed to pay the placement agent the placement agent fees set forth in the table below. Per Unit Total Offering price $ $ Placement agent fee(1) $ $ Proceeds to Pluristem, before expenses $ $ In addition to the placement agent fee listed in the table above, we have agreed to reimburse the placement agent for certain of its expenses with respect to this offering as described under “Plan of Distribution” on page S-6 of this prospectus supplement. Delivery of the units is expected to be made on or about June 30, 2015. Sole Placement Agent Maxim Group LLC June 26, 2015 TABLE OF CONTENTS Prospectus Supplement Page About this Prospectus Supplement S-ii Prospectus Supplement Summary S-1 Risk Factors S-3 Cautionary Statement Regarding Forward-Looking Statements S-3 Use of Proceeds S-4 Dividend Policy S-4 Dilution S-4 Plan of Distribution S-6 Description of Warrants S-7 Legal Matters S-10 Experts S-10 Where You Can Find More Information S-10 Incorporation of Certain Documents by Reference S-10 Prospectus Page About This Prospectus 1 Our Company 1 Risk Factors 1 Cautionary Note Regarding Forward-Looking Statements 1 Use of Proceeds 2 The Securities We May Offer 2 Description of Capital Stock 2 Description of Warrants 3 Description of Units 5 Plan of Distribution 6 Validityof Securities 8 Experts 8 Where You Can Find More Information 8 Incorporation of Documents by Reference 9 S - i ABOUT THIS PROSPECTUS SUPPLEMENT This prospectus supplement and the accompanying prospectus are part of a “shelf” registration statement on Form S-3 (File No.333-199303) we filed with the Securities and Exchange Commission, or the SEC, on October 14, 2014, and that was declared effective by the SEC on October 30, 2014.Under this “shelf” registration process, we may, from time to time, sell any combination of the securities described in the accompanying prospectus in one or more offerings up to a total amount of $200,000,000.As of June 24, 2015, prior to the consummation of this offering, we have not sold any securities under the foregoing “shelf” registration statement. This document is in two parts.The first part is this prospectus supplement, which describes the specific terms of this offering and also adds to and updates information contained in the accompanying prospectus and the documents incorporated by reference into this prospectus supplement and the accompanying prospectus.The second part is the accompanying prospectus, which gives more general information about the shares of our common stock, the warrants to purchase common stock and other securities we may offer from time to time under our “shelf” registration statement, some of which does not apply to the common stock offered by this prospectus supplement. Generally, when we refer to this prospectus supplement, we are referring to both parts of this document combined together with all documents incorporated by reference.To the extent there is a conflict between the information contained in this prospectus supplement, on the one hand, and the information contained in the accompanying prospectus or any document incorporated by reference therein, on the other hand, you should rely on the information in this prospectus supplement. You should read this prospectus supplement, the accompanying prospectus, and the documents incorporated by reference in this prospectus supplement and the accompanying prospectus before making an investment decision.You should also read and consider the information in the documents referred to in the sections of this prospectus supplement entitled “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference.” You should rely only on the information contained in or incorporated by reference into this prospectus supplement or contained in or incorporated by reference into the accompanying prospectus to which we have referred you.We have not authorized anyone to provide you with information that is different.If anyone provides you with different or inconsistent information, you should not rely on it.The information contained in, or incorporated by reference into, this prospectus supplement and contained in, or incorporated by reference into, the accompanying prospectus is accurate only as of the respective dates thereof, regardless of the time of delivery of this prospectus supplement and the accompanying prospectus or of any sale of securities. We are offering to sell, and are seeking offers to buy, the units only in jurisdictions where such offers and sales are permitted.The distribution of this prospectus supplement and the accompanying prospectus and the offering of the units in certain states or jurisdictions or to certain persons within such states and jurisdictions may be restricted by law.Persons outside the United States who come into possession of this prospectus supplement and the accompanying prospectus must inform themselves about and observe any restrictions relating to the offering of the units and the distribution of this prospectus supplement and the accompanying prospectus outside the United States.This prospectus supplement and the accompanying prospectus do not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus supplement and the accompanying prospectus by any person in any state or jurisdiction in which it is unlawful for such person to make such an offer or solicitation. In this prospectus supplement and the accompanying prospectus, unless otherwise indicated, the terms “Pluristem,” “we,” “us” and “our” mean Pluristem Therapeutics Inc. and its wholly-owned Israeli subsidiary, Pluristem Ltd., as required by the context. S - ii PROSPECTUS SUPPLEMENT SUMMARY This summary contains basic information about us and this offering.Because it is a summary, it does not contain all of the information that you should consider before investing.Before you decide to invest in our securities, you should read this entire prospectus supplement and the accompanying prospectus carefully, including the sections entitled “Risk Factors,” and our consolidated financial statements and the related notes and other documents incorporated by reference herein and in the accompanying prospectus. Our Company We are a bio-therapeutics company developing off-the-shelf allogeneic cell therapy products for the treatment of multiple ischemic and inflammatory conditions, with our lead indications focusing on cardiovascular, orthopedic, pulmonary, hematological, and women’s health diseases.Our patented PLX cells are intended to function as a platform that releases a number of therapeutic proteins in response to various local and systemic inflammatory and ischemic signals, generated by the patient’s own body.PLX cells are grown using our proprietary 3D micro-environment technology which produces a product that requires no tissue matching prior to administration. Our strategy is to develop and produce cell therapy products for the treatment of multiple disorders using several routes of administration, such as intravenous and intramuscular injections.We plan to execute this strategy independently, using our own personnel, and through relationships with research and clinical institutions or in collaboration with other companies.We have built a facility that complies with current Good Manufacturing Practice requirements (cGMPs) and we are planning to have in-house production capacity to grow clinical-grade PLX cells in commercial quantities. Our focus for 2015 is to make significant progress in our clinical pipeline and shorten the time to market our first product, PLX-PAD.We intend to leverage the new regulatory environments in Europe and Japan that now offer unique opportunities for accelerated paths to bring new products to the market.We believe that these new pathways create substantial opportunities for us and for the cell therapy industry as a whole.We will explore these accelerated pathways for several of our current clinical indications, such as critical limb ischemia, or CLI, as well as for carefully selected hematologic indications, which represent substantial unmet needs that we hope to address with our second product, PLX-R18.In May 2015, we announced that the PLX cell program in CLI had been selected for the Adaptive Pathways pilot project of the European Medicines Agency (EMA). In addition, we reported that Japan’s Pharmaceuticals and Medical Devices Agency (PMDA) approved the proposed quality and large-scale manufacturing methods for PLX-PAD for use in clinical trials in Japan.We will continue with frequent discussions with these regulators in order to initiate clinical studies using the accelerated paths. We plan to continue developing multiple placenta-derived cell therapy products that we anticipate will lead to significant improvement in the lives of patients, and expect to demonstrate the real-world impact and value of our pipeline, technology platform and commercial-scale manufacturing capacity. We made progress in our Phase II intermittent claudication trial, a randomized, double blind, placebo controlled, multinational clinical trial. We added sites in South Korea to this trial, which was already underway in Israel, the United States and Germany. We also anticipate that United Therapeutics Corporation, or United, will complete an ongoing Phase I clinical trial of PLX-PAD cells in pulmonary arterial hypertension in Australia, which will potentially lay the groundwork for a Phase II clinical trial. We plan to initiate Phase I Preeclampsia clinical trial, advance our Phase II/III clinical trial in an orthopedic indication and initiate a Phase II CLI clinical trials in regions with recently established rapid regulatory pathways, such as the Accelerated Pathway for Regenerative Therapy in Japan and the Adaptive Pathway in the European Union. Corporate Information We were incorporated as a Nevada corporation in 2001.We have a wholly-owned subsidiary in Israel called Pluristem Ltd.Our executive offices are located at MATAM Advanced Technology Park, Building No. 5, Haifa, Israel, our telephone number is 011-972-74-710-8607 and our website address is www.pluristem.com.This reference to our website is an inactive textual reference only, and is not a hyperlink.The information on our website is not incorporated by reference in this prospectus supplement and should not be considered to be part of this prospectus supplement. S - 1 The Offering Shares of common stock and warrants offered by us 6,800,000shares, plus warrants to purchase up to an additional 4,080,000 shares of common stock. This prospectus supplement also covers the shares of common stock issuable upon exercise of the warrants offered hereby. Offering price per unit Terms of warrants An exercise price of $2.85 per share of common stock, immediately exercisable and expiring 5 years from the closing of the offering. Common stock to be outstanding after this offering 78,502,832 shares of common stock, or 82,582,832 shares of common stock if the warrants sold in this offering are fully exercised. Use of proceeds We intend to use the net proceeds from this offering for research and product development activities, clinical trial activities, such as in Europe and Japan according to the accelerated and adaptive pathways, investment in capital equipment and for working capital and other general corporate purposes. See “Use of Proceeds” for more information. Risk factors See “Risk Factors” beginning on page S-3 of this prospectus supplement, as well as those risk factors that are incorporated by reference in this prospectus supplement and the accompanying prospectus, for a discussion of factors to consider carefully before deciding to purchase shares of our common stock. Nasdaq Capital Market symbol PSTI Unless we indicate otherwise, all information in this prospectus supplement is based on 71,702,832 shares of common stock outstanding as of June 24, 2015, assumes no exercise of outstanding options or warrants to purchase additional shares, and excludes as of such date: · 2,089,900 shares of common stock issuable upon the exercise of outstanding stock options as of June 24, 2015 at a weighted-average exercise price of $3.95 per share; · 232,496 shares of common stock reserved for future issuances under our stock option plans; · 8,279,983 shares of common stock issuable upon the exercise of outstanding warrants as of June 24, 2015 at a weighted-average exercise price of $4.51 per share; and · 1,568,047 shares of common stock issuable upon the vesting of outstanding restricted stock units as of June 24, 2015. S - 2 RISK FACTORS Investing in our securities involves significant risks.You should carefully consider the risk factors below, in the accompanying prospectus and in our filings with the SEC, including our Annual Report on Form 10-K for the fiscal year ended June 30, 2014, as well as all of the information contained in this prospectus supplement, in the accompanying prospectus and the other documents incorporated by reference herein or therein, before you decide to invest in our securities.Our business, prospects, financial condition and results of operations may be materially and adversely affected as a result of any of such risks.The value of our securities could decline as a result of any of these risks.You could lose all or part of your investment in our securities.The risks and uncertainties we have described are not the only ones we face.Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, prospects, financial condition and results of operations. Risks Related to this Offering You will experience immediate and substantial dilution in the net tangible book value per share of the common stock you purchase. Since the price per share of our common stock being offered is higher than the net tangible book value per share of our common stock, you will suffer substantial dilution in the net tangible book value of the common stock you purchase in this offering. If you purchase shares in this offering, you will incur an immediate and substantial dilution in net tangible book value of $1.71 per share.See the section entitled “Dilution” on page S-4 in this prospectus supplement for a more detailed discussion of the dilution you will incur if you purchase units in this offering. Our management will have broad discretion over the use of the proceeds we receive from this offering and may invest or spend the proceeds of this offering in ways with which you may not agree or in ways which may not yield a significant return, if any. We intend to use the net proceeds from this offering for research and product development activities, clinical trial activities, such as in Europe and Japan according to the accelerated and adaptive pathways, investment in capital equipment and for working capital and other general corporate purposes.Our management will have significant flexibility in applying the net proceeds of this offering.The actual amounts and timing of expenditures will vary significantly depending on a number of factors, including the amount of cash used in our operations and our research and development efforts.Management’s failure to use these funds effectively would have an adverse effect on the value of our common stock and could make it more difficult and costly to raise funds in the future. Future sales of our shares may cause the prevailing market price of our shares to decrease. We have issued a substantial number of shares issued or issuable upon exercise of warrants and options to purchase our shares that are eligible for, or may become eligible for, unrestricted resale. Any sales or registration of such shares in the public market or otherwise could reduce the prevailing market price for our shares, as well as make future sales of equity securities by us less attractive or even not feasible. The sale of shares issued upon the exercise of our options and warrants, including the warrants offered hereby as part of the units, could also further dilute the holdings of our then existing shareholders. CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS The statements contained in this prospectus supplement, the accompanying prospectus supplement and the documents we incorporate by reference herein or therein that are not historical facts are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws.Such forward-looking statements may be identified by, among other things, the use of forward-looking terminology such as “believes,” “intends,” “plans,” “expects,” “may,” “will,” “should,” or “anticipates” or the negative thereof or other variations thereon or comparable terminology, and similar expressions are intended to identify forward-looking statements.We remind readers that forward-looking statements are merely predictions and therefore inherently subject to uncertainties and other factors and involve known and unknown risks that could cause the actual results, performance, levels of activity, or our achievements, or industry results, to be materially different from any future results, performance, levels of activity, achievements or industry results, expressed or implied by such forward-looking statements.Such forward-looking statements include, among other statements, statements regarding the following: · the expected development and potential benefits from our products in treating various medical conditions; S - 3 · the exclusive license agreements we entered into with United and CHA Biotech Co., Ltd.and clinical trials to be conducted according to such agreements; · our pre-clinical and clinical trials plans, including the completion of recruitment processes and timing of conclusion of certain milestones and trials; · achieving regulatory approvals, including under accelerated paths, and our plans to leverage these accelerated paths to bring new products to the market; · developing capabilities for new clinical indications of placenta expanded cells (PLX); · the potential market demand for our products; · our outlook for the coming months and future periods, including but not limited to our expectations regarding future revenue and expenses; and · information with respect to any other plans and strategies for our business. The factors discussed herein, including those risks described under the heading “Risk Factors” herein, in the accompanying prospectus and in the documents we incorporate by reference could cause actual results and developments to be materially different from those expressed in or implied by such statements.In addition, historic results of scientific research, clinical and preclinical trials do not guarantee that the conclusions of future research or trials would not suggest different conclusions.Also, historic results referred to this prospectus supplement, the accompanying prospectus and the documents we incorporate by reference may be interpreted differently in light of additional research, clinical and preclinical trials results.Except as required by law we undertake no obligation to publicly update such forward-looking statements to reflect subsequent events or circumstances. USE OF PROCEEDS We estimate that our net proceeds from this offering will be approximately $15,800,000 at a public offering price of $2.50 per unit after deducting the placement agent's fees and the estimated offering expenses that are payable by us and excluding any proceeds from the potential exercise of warrants offered hereby. We intend to use the net proceeds from this offering for research and product development activities, clinical trial activities, such as in Europe and Japan according to the accelerated and adaptive pathways, investment in capital equipment and for working capital and other general corporate purposes.Pending the application of the net proceeds, we intend to invest the net proceeds in bank deposits or investment-grade, interest-bearing securities subject to any investment policies our investment committee may determine from time to time. We have not yet determined the amount of net proceeds to be used specifically for any of the foregoing purposes.Accordingly, our management will have significant discretion and flexibility in applying the net proceeds from this offering.Depending upon the timing of receipt of any proceeds from the exercise of warrants exercise, we would use such proceeds for such corporate purposes as our management and Board of Directors may approve at the time.Such purposes may be different from the anticipated purposes as of the date of this prospectus supplement. DIVIDEND POLICY We have never declared or paid any cash dividends on our common stock.We intend to retain any future earnings to finance the growth and development of our business and do not anticipate paying any cash dividends in the foreseeable future.Any dividends paid will be solely at the discretion of our board of directors. DILUTION Purchasers of common stock in this offering (either as a component of units or upon warrant exercise) will incur immediate and substantial dilution in the net tangible book value per share of common stock.Our historical net tangible book value as of March 31, 2015 was approximately $0.64 per share of our common stock.Net tangible book value per share represents the amount of tangible assets less total liabilities, divided by 71,043,011 shares of common stock, which was the number of shares of our common stock outstanding as of March 31, 2015. S - 4 Dilution in net tangible book value per share represents the difference between the amount per share paid by purchasers in this offering and the net tangible book value per share of our common stock immediately after this offering.After giving effect to the sale of 6,800,000 shares of common stock in this offering at an offering price of $2.50 per share (assuming no separate consideration was paid for the warrants issued in this offering), and after deducting the placement agent's fees and the estimated offering expenses payable by us, our as adjusted net tangible book value as of March 31, 2015, would have been approximately $0.79 per share of common stock.This represents an immediate increase in net tangible book value of $0.15 per share of common stock to our existing stockholders and an immediate dilution in net tangible book value of $1.71 per share of common stock to investors participating in this offering.The following table illustrates this per share dilution: Offering price per share $ Historical net tangible book value per share as of March 31, 2015 $ Increase in net tangible book value per share attributable to this offering $ As adjusted net tangible book value per share after this offering $ Dilution per share to new investors in this offering $ The foregoing illustration does not reflect potential dilution from the exercise of outstanding options or warrants to purchase shares of our common stock. The foregoing per share dilution does not give effect to the potential exercise of the warrants offered hereby. Assuming the sale of all units offered hereby and also the exercise of all warrants within such units, the per share dilution would be as follows: After giving effect to the sale of 10,880,000 shares of common stock in this offering (inclusive of the warrant shares) at the public offering price of $2.50 per share (assuming no separate consideration was paid for the warrants issued in this offering), and assuming an exercise price of $2.85 per warrant share, and after deducting underwriting discounts and commissions and estimated offering expenses, our net tangible book value as of March 31, 2015, would have been $72.99 million, or $0.89 per share. This amount represents an immediate increase in net tangible book value to existing shareholders of $0.25 per share and an immediate dilution in net tangible book value of $1.74 per share to purchasers of our shares of common stock in this offering, as illustrated in the following table: Offering price per share $ Historical net tangible book value per share as of March 31, 2015 $ Increase in net tangible book value per share attributable to this offering $ As adjusted net tangible book value per share after this offering $ Dilution per share to new investors in this offering $ The discussion and tables above are based on 71,043,011 shares outstanding as of March 31, 2015 and excludes as of that date: · 2,106,676 shares of common stock issuable upon the exercise of outstanding stock options as of March 31, 2015 at a weighted-average exercise price of $3.91 per share; · 299,225 shares of common stock reserved for future issuances under our stock option plans; · 8,865,169 shares of common stock issuable upon the exercise of outstanding warrants as of March 31,, 2015 at a weighted-average exercise price of $4.31 per share; and · 1,779,781 shares of common stock issuable upon the vesting of outstanding restricted stock units as of March 31, 2015. S - 5 To the extent that outstanding options or warrants outstanding as of March 31, 2015 have been or may be exercised or unvested restricted stock units have been or may be issued, investors purchasing our common stock in this offering may experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders. PLAN OF DISTRIBUTION We have entered into a placement agent letter agreement, dated as of June 25, 2015, with Maxim Group LLC, or Maxim.Subject to the terms and conditions contained in the placement agent letter agreement, Maxim has agreed to act as the sole placement agent in connection with the sale of our shares of common stock and warrants to purchase shares of common stock. The shares of common stock and warrants will be sold in units, with each unit consisting of one share of common stock and 0.6 warrant, where each whole warrant is exercisable to purchaseone share of common stock,and the shares of common stock and warrants immediately separable upon issuance. There is no market through which the warrants may be sold and purchasers may not be able to resell the warrants purchased under this prospectus supplement. The placement agent may engage selected dealers to assist in the placement of the units.The placement agent is not purchasing or selling any of the units offered by us under this prospectus supplement and the accompanying prospectus, nor is it required to arrange the purchase or sale of any specific number or dollar amount of the units. The placement agent has agreed to use its reasonable best efforts to arrange for the sale of units.There is no required minimum number of units that must be sold as a condition to completion of this offering. The purchase price for the shares of common stock has been determined based upon arm’s-length negotiations between the purchasers and us. The placement agent letter agreement provides that the obligations of the placement agent and the purchasers of the units are subject to certain conditions precedent, including, among other things, the absence of any material adverse change in our business and the receipt of customary legal opinions, letters and certificates. We have entered into a securities purchase agreement directly with purchasers in connection with this offering, and we will only sell to purchasers who have entered into the securities purchase agreement.We currently anticipate that the closing of the sale of the units offered hereby will be completed on or about June 30, 2015, subject to customary closing conditions. Upon closing, we will deliver to each purchaser delivering funds the number of units purchased by such purchaser through the facilities of The Depository Trust Company. Maxim may be deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended, or the Securities Act, and any commissions received by it and any profit realized on the resale of the units sold by it while acting as principal might be deemed to be underwriting discounts or commissions under the Securities Act. As underwriter, Maxim would be required to comply with the requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, or the Exchange Act, including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5 and Regulation M under the Exchange Act. These rules and regulations may limit the timing of purchases and sales of shares of common stock and warrants by Maxim acting as principal. Under these rules and regulations, Maxim: · may not engage in any stabilization activity in connection with our securities; and · may not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act, until it has completed its participation in the distribution. S - 6 Commissions and Expenses We have agreed to pay the placement agent an aggregate cash placement agent fee equal to 6.0% of the gross proceeds received by us for this offering. This fee will be distributed among the placement agent and any sub-agents, selected-dealers, or financial advisors that it has retained to act on its behalf in connection with the offering. The following table shows per share and total cash placement agent’s fees we will pay to the placement agent in connection with the sale of the units pursuant to this prospectus supplement and the accompanying prospectus assuming the purchase of all of the units offered hereby: Per share placement agent fees $ Total $ Leader Underwriters (1993) Ltd. ("Leader"), H.C. Wainwright & Co., LLC ("H.C. Wainwright") andMLV & Co. LLC, or MLV have acted as our financial advisors in connection with this offering, and will be paid $260,100, $35,700 and $35,700 respectively for their services. The expenses of this offering includethe fees to be paid to such financial advisors for services rendered in connection with this offering. In connection with the offering being made by this prospectus supplement and the accompanying prospectus, we will reimburse the placement agent for certain legal fees and disbursements incurred by it in connection with this offering. The aggregate amount of such reimbursements will not exceed $40,000. We estimate the total offering expenses of this offering that will be payable by us, excluding the placement agent’s fees, will be approximately $180,000, which includes legal and printing costs, various other fees and the reimbursement of the placement agent’s expenses. Indemnification We have agreed to indemnify the placement agent and certain other persons against certain liabilities, including liabilities under the Securities Act and the Exchange Act, and to contribute to payments that the placement agent may be required to make in respect of those liabilities. Listing Our shares of common stock are listed on the NASDAQ Capital Market under the trading symbol “PSTI” and on the Tel Aviv Stock Exchange under the trading symbol “PLTR.” Transfer Agent The transfer agent for our common stock is American Stock Transfer and Trust Company, LLC. Other The placement agent letter agreement and the securities purchase agreement are included as exhibits to a Current Report on Form 8-K that we filed with the SEC and that is incorporated by reference into the registration statement of which this prospectus supplement forms a part. The placement agent or its affiliates may in the future provide investment banking, commercial banking and/or other services to us from time to time, for which they may in the future receive customary fees and expenses. DESCRIPTION OF WARRANTS The warrants to be issued in this offering represent the right to purchase up to 4,080,000 shares of common stock at an initial exercise price of $2.85 per share. Each warrant may be exercised at any time and from time to time on or after the closing of this offering and through the close of business on the five-year anniversary of the closing of this offering. S - 7 Exercise Holders of the warrants may exercise their warrants to purchase shares of our common stock on or before the expiration date by delivering (1) an exercise notice, appropriately completed and duly signed, and (2) if such holder is not utilizing the cashless exercise provisions, payment of the exercise price for the number of shares with respect to which the warrant is being exercised. Warrants may be exercised in whole or in part, but only for full shares of common stock, and any portion of a warrant not exercised prior to the expiration date shall be and become void and of no value. We provide certain rescission, compensation and buy-in rights to a holder if we fail to deliver the shares of common stock underlying the warrants by the first trading day after delivery to us of the exercise notice. With respect to the rescission rights, the holder has the right to rescind the exercise. The buy-in rights apply if after such first trading day the holder purchases (in an open market transaction or otherwise) shares of our common stock to deliver in satisfaction of a sale by the holder of the warrant shares that the holder anticipated receiving from us upon exercise of the warrant. In this event, we will: § pay cash to the holder in an amount equal to the excess (if any) of the buy-in price over the product of (A) such number of shares of common stock, times (B) the price at which the sell order giving rise to holder’s purchase obligation was executed; and § at the election of holder, either (A) reinstate the portion of the warrant as to such number of shares of common stock, or (B) deliver to holder a certificate or certificates representing such number of shares of common stock. In addition, the warrant holders are entitled to a “cashless exercise” option if, at any time of exercise, there is no effective registration statement registering, or no current prospectus available for, the issuance or resale of the shares of common stock underlying the warrants. This option entitles the warrant holder to elect to receive fewer shares of common stock without paying the cash exercise price. The number of shares to be issued would be determined by a formula based on the total number of shares with respect to which the warrant is being exercised, the volume weighted average of the prices per share of our common stock on the trading date immediately prior to the date of exercise and the applicable exercise price of the warrants.Additionally, on the termination date of the warrants, provided the warrants are still outstanding, the warrants shall be automatically exercised on a cashless basis. The shares of common stock issuable on exercise of the warrants will be, when issued in accordance with the warrants, duly and validly authorized, issued and fully paid and non-assessable. We will authorize and reserve at least that number of shares of common stock equal to the number of shares of common stock issuable upon exercise of all outstanding warrants. Delivery of Certificates Upon the holder’s exercise of a warrant, we will promptly, but in no event later than one trading day after the exercise date, issue and deliver, or cause to be issued and delivered, a certificate for the shares of common stock issuable upon exercise of the warrant. In addition, we will, if the holder provides the necessary information to us, issue and deliver the shares electronically through The Depository Trust Corporation through its Deposit Withdrawal Agent Commission System or another established clearing corporation performing similar functions. Certain Adjustments The exercise price and the number of shares of common stock purchasable upon the exercise of the warrants are subject to adjustment upon the occurrence of the following events: Stock Dividends and Splits If, at any time while the warrant is outstanding, we (1) pay a stock dividend or otherwise make a distribution on shares of common stock or any other equity or equity equivalent securities payable in shares of common stock, (2) subdivide outstanding shares of common stock into a larger number of shares, (3) combine outstanding shares of common stock into a smaller number of shares, or (4) issue by reclassification of common stock any shares of capital stock, then in each such case the exercise price shall be multiplied by a fraction of which the numerator shall be the number of shares of common stock outstanding immediately before such event and of which the denominator shall be the number of shares of common stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate exercise price of the warrant shall remain unchanged. S - 8 Subsequent Rights Offerings If, at any time while the warrant is outstanding, we issue rights, options or warrants to all holders of our common stock entitling them to purchase our common stock at a price per share less than the volume weighted average price on the date of the issuance of such rights, options or warrants, then the exercise price shall be multiplied by a fraction, of which the denominator shall be the number of shares of common stock outstanding on the date of issuance of such rights or warrants plus the number of additional shares of common stock offered for subscription or purchase, and of which the numerator shall be the number of shares of common stock outstanding on the date of issuance of such rights or warrants plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such volume weighted average price. Pro Rata Distributions If, at any time while the warrant is outstanding, we distribute evidence of our indebtedness or assets or rights or warrants to purchase any security other than our common stock to all holders of our common stock, or, distribution, then the exercise price will adjust pursuant to a volume weighted average price based ratio that takes into account the then per share fair market value of the portion of the distribution applicable to one outstanding share of the common stock. Fundamental Transactions If, at any time while the warrant is outstanding, we (1) consolidate or merge with or into another corporation, (2) sell all or substantially all of our assets, (3) are subject to or complete a tender or exchange offer pursuant to which holders of our common stock are permitted to tender or exchange their shares for other securities, cash or property, or (4) effect any reclassification of our common stock or any compulsory share exchange pursuant to which our common stock is converted into or exchanged for other securities, cash or property, each, a Fundamental Transaction, then the holders shall have the right thereafter to receive, upon exercise of the warrant, the same amount and kind of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the number of warrant shares then issuable upon exercise of the warrant, which we refer to in this prospective supplement as Alternate Consideration. Any successor to us, surviving entity or the corporation purchasing or otherwise acquiring such assets shall assume the obligation to deliver to the holder such Alternate Consideration as the holder may be entitled to purchase, and the other obligations under the warrant. In the event of certain Fundamental Transactions, the holders of the warrants will be entitled to receive, in lieu of our common stock and at the holders’ option, cash in an amount equal to the value of the remaining unexercised portion of the warrant on the date of the transaction determined using a Black-Scholes option pricing model with an expected volatility equal to the 100 day historical price volatility obtained from Bloomberg L.P. as of the trading day immediately prior to the public announcement of the transaction. Notice of Corporate Action We will provide notice to holders of the warrants to provide such holders with an opportunity to exercise their warrants and hold common stock in order to participate in or vote on the following corporate events if we (1) declare a dividend on the common stock, (2) declare a special nonrecurring cash dividend on or a redemption of the common stock, (3) authorize the granting to all holders of the common stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (4) require the approval of any stockholders in connection with any reclassification of the common stock, any consolidation or merger to which we are a party, any sale or transfer of all or substantially all of our assets, any compulsory share exchange whereby the common stock is converted into other securities, cash or property, or (5) authorize the voluntary or involuntary dissolution, liquidation or winding up of our affairs. Limitations on Exercise The number of warrant shares that may be acquired by the holder upon any exercise of the warrant shall be limited to the extent necessary to insure that, following such exercise (or other issuance), the total number of shares of common stock then beneficially owned by such holder and its affiliates and any other persons whose beneficial ownership of common stock would be aggregated with the holder’s for purposes of Section 13(d) of the Exchange Act, does not exceed 4.99% of the total number of issued and outstanding shares of common stock (including for such purpose the shares of common stock issuable upon such exercise), which we refer to as the Beneficial Ownership Limitation. The holder may elect to change the Beneficial Ownership Limitation from 4.99% to 9.99% of the total number of issued and outstanding shares of common stock (including for such purpose the shares of common stock issuable upon such exercise) upon 61 days’ prior written notice. S - 9 Waivers and Amendments The warrants may be modified or amended and the provisions therein may be waived with our written consent and the consent of the holders of the warrants. Additional Provisions The above summary of certain terms and provisions of the warrants is qualified in its entirety by reference to the detailed provisions of the warrants, the form of whichis included as an exhibit to a Current Report on Form 8-K that we filed with the SEC and that is incorporated by reference into the registration statement of which this prospectus supplement forms a part. We are not required to issue fractional shares upon the exercise of the warrants. No holders of the warrants will possess any rights as a stockholder under those warrants until the holder exercises those warrants. The warrants may be transferred independent of the common stock they were issued with, on a form of assignment, subject to all applicable laws. LEGAL MATTERS The validity of the common stock offered hereby will be passed upon for us by Zysman,Aharoni, Gayer and Sullivan & Worcester LLP, New York, New York.Certain legal matters related to the offering will be passed upon for the placement agent by Ellenoff Grossman & Schole LLP. EXPERTS The consolidated financial statements of Pluristem appearing in our Annual Report on Form10-K for the fiscal year ended June 30, 2014, and the effectiveness of the internal control over financial reporting of Pluristem as of June 30, 2014, have been audited by Kost Forer Gabbay & Kasierer, a member of Ernst & Young Global, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference.Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at www.pluristem.com. Our website is not a part of this prospectus supplement and is not incorporated by reference in this prospectus supplement. You may also read and copy any document we file at the SEC’s Public Reference Room, treet, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. This reference to the websites is an inactive textual reference only, and is not a hyperlink. This prospectus is part of a registration statement we filed with the SEC. This prospectus supplement and the accompanying prospectus omit some information contained in the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits in the registration statement for further information on us and our consolidated subsidiaries and the securities we are offering. Statements in this prospectus supplement and the accompanying prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements. You can obtain a copy of the registration statement from the SEC at the address listed above or from the SEC’s website. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE We are “incorporating by reference” certain documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents.The information in the documents incorporated by reference is considered to be part of this prospectus supplement and the accompanying prospectus.Statements contained in documents that we file with the SEC and that are incorporated by reference in this prospectus supplement and the accompanying prospectus will automatically update and supersede information contained in this prospectus supplement and the accompanying prospectus, including information in previously filed documents or reports that have been incorporated by reference in this prospectus supplement and the accompanying prospectus, to the extent the new information differs from or is inconsistent with the old information. S - 10 In addition to the documents listed under “Incorporation of Documents by Reference” in the accompanying prospectus, we incorporate by referencethe following documents, which we filed with the SEC under the Exchange Act: (1)Our Quarterly Reports on Form 10-Q filed with the SEC on November 6, 2014, February 5, 2015 and May 6, 2015. (2)Our Current Reports on Form 8-K filed with the SEC on May 18, 2015, May 26, 2015, and June 25, 2015. All documents filed by us pursuant to Sections13(a), 13(c), 14 or 15(d) of the Exchange Act (1)after the date of the filing of the registration statement of which this prospectus supplement and the accompanying prospectus form a part and prior to its effectiveness and (2)until all of the common stock to which this prospectus supplement relates has been sold or the offering is otherwise terminated, except in each case for information contained in any such filing where we indicate that such information is being furnished and is not to be considered “filed” under the Exchange Act, will be deemed to be incorporated by reference in this prospectus supplement and the accompanying prospectus and to be a part hereof and thereof from the date of filing of such documents. We will provide a copy of the documents we incorporate by reference, at no cost, to any person who receives this prospectus supplement and the accompanying prospectus.To request a copy of any or all of these documents, you should write or telephone us at MATAM Advanced Technology Park, Building No. 5, Haifa, L3 31905, Israel, Attention: Yaky Yanay, tel.: 011-972-74-710-8607. S - 11 PROSPECTUS Common Stock Preferred Stock Warrants Units We may from time to time sell common stock, preferred stock and warrants to purchase common stock, and units of two or more of such securities, in one or more offerings for an aggregate initial offering price of $200,000,000.We refer to the common stock, the preferred stock, the warrants to purchase common stock and the units collectively as the securities.This prospectus describes the general manner in which our securities may be offered using this prospectus.Other than in connection with the exercise of certain outstanding warrants, we will specify in an accompanying prospectus supplement the terms of the securities to be offered and sold.We may sell these securities to or through underwriters or dealers, directly to purchasers or through agents.We will set forth the names of any underwriters, dealers or agents in an accompanying prospectus supplement.You should carefully read this prospectus and any accompanying supplements before you decide to invest in any of these securities. Our common stock is traded on the NASDAQ Capital Market, or Nasdaq, under the symbol “PSTI” and on the Tel Aviv Stock Exchange under the symbol “PLTR.” Investing in our securities involves risks.See “Risk Factors” on page2 of this prospectus. Neither the Securities and Exchange Commission, or the SEC, 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 isOctober 30, 2014. TABLE OF CONTENTS ABOUT THIS PROSPECTUS 1 OUR COMPANY 1 RISK FACTORS 1 CAUTIONARY NOTEREGARDING FORWARD-LOOKING INFORMATION 1 USE OF PROCEEDS 2 THE SECURITIES WE MAY OFFER 2 DESCRIPTION OF CAPITAL STOCK 2 DESCRIPTION OF WARRANTS 3 DESCRIPTION OF UNITS 5 PLAN OF DISTRIBUTION 6 VALIDITY OF THE SECURITIES 8 EXPERTS 8 WHERE YOU CAN FIND MORE INFORMATION 8 INCORPORATION OF DOCUMENTS BY REFERENCE 9 You should rely only on the information contained in this prospectus, any prospectus supplement and the documents incorporated by reference herein or therein, or to which we have referred you.We have not authorized anyone to provide you with different information.If anyone provides you with different or inconsistent information, you should not rely on it.This prospectus and any prospectus supplement do not constitute an offer to sell, or a solicitation of an offer to purchase, the securities offered by this prospectus and any prospectus supplement in any jurisdiction to or from any person to whom or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction.You should not assume that the information contained in this prospectus, any prospectus supplement or any document incorporated by reference is accurate as of any date other than the date indicated in the applicable document. Neither the delivery of this prospectus nor any distribution of securities pursuant to this prospectus shall, under any circumstances, create any implication that there has been no change in the information set forth or incorporated by reference into this prospectus or in our affairs since the date of this prospectus.Our business, financial condition, results of operations and prospects may have changed since that date. Our name and logo and the names of our products are our trademarks or registered trademarks.Unless the context otherwise requires, references in this prospectus to “Pluristem,” “we,” “us,” and “our” refer to Pluristem Therapeutics Inc. and its subsidiary as required by the context. ABOUT THIS PROSPECTUS This prospectus is part of a registration statement that we filed with the SEC using a “shelf” registration process.Under this shelf registration process, we may, from time to time, sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $200,000,000.This prospectus describes the securities we may offer and the general manner in which our securities may be offered by this prospectus.Each time we sell securities (other than in connection with the exercise of certain outstanding warrants), we will provide a prospectus supplement that will contain specific information about the terms of that offering.We may also add, update or change in the prospectus supplement any of the information contained in this prospectus.To the extent there is a conflict between the information contained in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement, provided that if any statement in one of these documents is inconsistent with a statement in another document having a later date- for example, a document incorporated by reference in this prospectus or any prospectus supplement- the statement in the document having the later date modifies or supersedes the earlier statement. OUR COMPANY This summary highlights information contained in the documents incorporated herein by reference.Before making an investment decision, you should read the entire prospectus, and our other filings with the SEC, including those filings incorporated herein by reference, carefully, including the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.” We are a bio-therapeutics company developing off-the-shelf allogeneic cell therapy products for the treatment of multiple ischemic and inflammatory conditions, with our lead indications focusing on cardiovascular, orthopedic, pulmonary, hematological, and women’s health diseases.Our patented PLX (PLacental eXpanded) cells function as a platform that releases a number of therapeutic proteins in response to various local and systemic inflammatory and ischemic signals, generated by the patient’s own body.PLX cells are grown using our proprietary 3D micro-environment technology that produces a product that requires no tissue matching prior to administration.Our strategy is to develop and produce cell therapy products for the treatment of multiple disorders using several methods of administration, such as intravenous and intramuscular injections.We plan to execute this strategy independently, using our own personnel, and through relationships with research and clinical institutions or in collaboration with other companies. We were incorporated as a Nevada corporation in 2001.We have a wholly owned subsidiary in Israel called Pluristem Ltd.Our executive offices are located at MATAM Advanced Technology Park, Building No. 5, Haifa, Israel, our telephone number is and our website address is www.pluristem.com.This reference to our website is an inactive textual reference only, and is not a hyperlink.The information on our website is not incorporated by reference in this prospectus and should not be considered to be part of this prospectus.You should not consider the contents of our website in making an investment decision with respect to the securities. RISK FACTORS An investment in our securities involves significant risks.You should carefully consider the risk factors contained in any prospectus supplement and in our filings with the SEC, including our Annual Report on Form 10-K for the fiscal year ended June30, 2014, as well as all of the information contained in this prospectus, any prospectus supplement and the other documents incorporated by reference herein or therein, before you decide to invest in our securities.Our business, prospects, financial condition and results of operations may be materially and adversely affected as a result of any of such risks.The value of our securities could decline as a result of any of these risks.You could lose all or part of your investment in our securities.The risks and uncertainties we have described are not the only ones we face.Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, prospects, financial condition and results of operations. CAUTIONARY NOTEREGARDING FORWARD-LOOKING INFORMATION The statements contained in this prospectus, any prospectus supplement and the documents we incorporate by reference herein or therein that are not historical facts are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws.Such forward-looking statements may be identified by, among other things, the use of forward-looking terminology such as “believes,” “intends,” “plans,” “expects,” “may,” “will,” “should,” or “anticipates” or the negative thereof or other variations thereon or comparable terminology, and similar expressions are intended to identify forward-looking statements.We remind readers that forward-looking statements are merely predictions and therefore inherently subject to uncertainties and other factors and involve known and unknown risks that could cause the actual results, performance, levels of activity, or our achievements, or industry results, to be materially different from any future results, performance, levels of activity, achievements or industry results, expressed or implied by such forward-looking statements.The factors discussed herein, including those risks described under the heading “Risk Factors” herein and in the documents we incorporate by reference, as well as those discussed elsewhere in this prospectus and any prospectus supplement could cause actual results and developments to be materially different from those expressed in or implied by such statements.In addition, historic results of scientific research, clinical and preclinical trials do not guarantee that the conclusions of future research or trials would not suggest different conclusions.Also, historic results referred to this prospectus, any prospectus supplement and the documents we incorporate by reference may be interpreted differently in light of additional research, clinical and preclinical trials results.Except as required by law we undertake no obligation to publicly update such forward-looking statements to reflect subsequent events or circumstances. 1 USE OF PROCEEDS Unless we otherwise indicate in an applicable prospectus supplement, we currently intend to use the net proceeds from the sale of the securities for research and product development activities, clinical trial activities, investment in capital equipment and for working capital and other general corporate purposes. We may set forth additional information on the use of net proceeds from the sale of securities we offer under this prospectus in a prospectus supplement relating to the specific offering.Pending the application of the net proceeds, we intend to invest the net proceeds in bank deposits or investment-grade, interest-bearing securities subject to any investment policies our investment committee may determine from time to time. THE SECURITIES WE MAY OFFER The descriptions of the securities contained in this prospectus, together with any applicable prospectus supplement, summarize the material terms and provisions of the various types of securities that we may offer.We will describe in any applicable prospectus supplement relating to any securities the particular terms of the securities offered by that prospectus supplement.If we so indicate in any applicable prospectus supplement, the terms of the securities may differ from the terms we have summarized below.We may also include in any prospectus supplement information, where applicable, about material U.S. federal income tax consequences relating to the securities, and the securities exchange or market, if any, on which the securities will be listed. We may sell from time to time, in one or more offerings, one or more of the following securities: ● common stock; ● preferred stock; ● warrants to purchase common stock; and ● units of two or more of the securities mentioned above. The total initial offering price of all securities that we may issue in these offerings will not exceed $200,000,000. DESCRIPTION STOCK The following summary is a description of the material terms of our share capital.We encourage you to read our Certificate of Incorporation, as amended, and Amended and Restated By-laws which have been filed with the SEC, as well as the applicable provisions of the Nevada Revised Statutes. Our authorized capital stock currently consists of 200,000,000shares of common stock, of which there were 69,580,644 shares outstanding as of September 27, 2014, and 10,000,000 shares of “blank check” preferred stock, none of which are outstanding.The following statements set forth the material terms of our capital stock; however, reference is made to the more detailed provisions of, and these statements are qualified in their entirety by reference to, our Articles of Incorporation and Bylaws, copies of which are referenced as exhibits herein, and the provisions of Nevada General Corporation Law.Except for our ability to issue additional securities, including preferred stock with terms that may be determined at a later date by our Board, there are no provisions in our Articles of Incorporation or Bylaws that would delay, defer or prevent a change in our control. 2 Common Stock Except as otherwise required by applicable law and subject to the preferential rights of any outstanding preferred stock, all voting rights are vested in and exercised by the holders of common stock with each share of our common stock being entitled to one vote.In the event of liquidation, holders of the common stock are entitled to share ratably in the distribution of assets remaining after payment of liabilities, if any.Holders of the common stock have no cumulative voting rights and no preemptive or other rights to subscribe for shares.Holders of common stock are entitled to such dividends as may be declared by the Board of Directors out of funds legally available therefor. Blank Check Preferred Stock Our Board of Directors is empowered, without further action by stockholders, to issue from time to time one or more series of preferred stock, with such designations, rights, preferences and limitations as the Board may determine by resolution.The rights, preferences and limitations of separate series of preferred stock may differ with respect to such matters among such series as may be determined by the Board, including, without limitation, the rate of dividends, method and nature of payment of dividends, terms of redemption, amounts payable on liquidation, sinking fund provisions (if any), conversion rights (if any) and voting rights.Certain issuances of preferred stock may have the effect of delaying or preventing a change in control of our company that some stockholders may believe is not in their interest. Transfer Agent American Stock Transfer and Trust Company, LLC is the registrar and transfer agent for our common shares.Their address is 620115th Avenue, 2nd Floor, Brooklyn, NY11219, telephone: (718) 921-8261, (800) 937-5449. Nevada Anti-Takeover Law Nevada revised statutes sections 78.378 to 78.3793provide state regulation over the acquisition of a controlling interest in certain Nevada corporations unless the articles of incorporation or bylaws of the corporation provide that the provisions of these sections do not apply.This statute currently does not apply to our Company because in order to be applicable we would have to have as shareholders a specified number of Nevada residents and we would have to do business in Nevada directly or through an affiliate. DESCRIPTION OF WARRANTS The following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the material terms and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates.While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants (and any securities issuable upon exercise of such warrants) in more detail in the applicable prospectus supplement.If we so indicate in a prospectus supplement, the terms of any warrants offered under that prospectus supplement may differ from the terms we describe below.Specific warrant agreements will contain additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement. General We may issue warrants for the purchase of common stock in one or more series.We may issue warrants independently or together with common stock, and the warrants may be attached to or separate from the common stock. We will evidence each series of warrants by warrant certificates that we will issue under a separate agreement or by warrant agreements that we will enter into directly with the purchasers of the warrants.If we evidence warrants by warrant certificates, we will enter into a warrant agreement with a warrant agent.We will indicate the name and address of the warrant agent, if any, in the applicable prospectus supplement relating to a particular series of warrants. 3 We will describe in the applicable prospectus supplement the terms of the series of warrants, including: ● the offering price and aggregate number of warrants offered; ● the currency for which the warrants may be purchased or exercised; ● if applicable, the terms of the common stock with which the warrants are issued and the number of warrants issued with such common stock; ● if applicable, the date on and after which the warrants and the related common stock will be separately transferable; ● the number of shares of common stock or other securities purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; ● the manner in which the warrants may be exercised, which may include by cashless exercise; ● the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; ● the terms of any rights to redeem or call the warrants; ● any provisions for changes to or adjustments in the exercise price or number of shares of common stock issuable upon exercise of the warrants; ● the dates on which the right to exercise the warrants will commence and expire; ● the manner in which the warrant agreement and warrants may be modified; ● the material United States federal income tax consequences of holding or exercising the warrants; ● the terms of the common stock issuable upon exercise of the warrants;and ● any other specific terms, preferences, rights or limitations of or restrictions on the warrants. Before exercising their warrants, holders of warrants will not have any of the rights of holders of the common stock purchasable upon such exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any. Exercise of Warrants Each warrant will entitle the holder to purchase the number of shares of common stock that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement.Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to 5:00P.M., Eastern U.S. time, on the expiration date that we set forth in the applicable prospectus supplement.After the close of business on the expiration date, unexercised warrants will become void. Holders of the warrants may exercise the warrants by delivering to the warrant agent or us the warrant certificate or warrant agreement representing the warrants to be exercised together with specified information, and by paying the required amount to the warrant agent or us in immediately available funds, as provided in the applicable prospectus supplement.We will set forth on the reverse side of the warrant certificate or in the warrant agreement and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent or us in connection with such exercise. Upon receipt of the required payment and the warrant certificate or the warrant agreement, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, at our offices or at any other office indicated in the applicable prospectus supplement, we will issue and deliver the common stock or other securities purchasable upon such exercise.If fewer than all of the warrants represented by the warrant certificate or warrant agreement are exercised, then we will issue a new warrant certificate or warrant agreement for the remaining amount of warrants. 4 Enforceability of Rights by Holders of Warrants If we appoint a warrant agent, any warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant.A single bank or trust company may act as warrant agent for more than one issue of warrants.A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us.Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants. Outstanding Warrants The shares of common stock registered under the registration statement of which this prospectus is a part include: ● 3,219,983 shares of common stock issuable upon exercise of warrants that were issued under our registration statement on Form S-3 declared effective on October20, 2011 (Registration No. 333-177009).Such warrants were issued on September 19, 2012, have an exercise price of $5.00 per share and expire on September 19, 2017. ● 5,060,000 shares of common stock issuable upon exercise of warrants that were issued under our registration statement on Form S-3 declared effective on January 11, 2011 (Registration No. 333-171334).Such warrants were issued on February1, 2011, have an exercise price of $4.20 per share and expire on August 1, 2016. No prospectus supplement will be delivered in connection with the issuance of these shares of common stock pursuant to the exercise of such warrants. DESCRIPTION OF UNITS We may issue, in one or more series, units consisting of common stock, preferred stock and/or warrants for the purchase of common stock and/or preferred stock, in any combination.While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement.The terms of any units offered under a prospectus supplement may differ from the terms described below. We will file as exhibits to a prospectus supplement, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units.The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units.We urge you to read the applicable prospectus supplement related to the particular series of units that we may offer under this prospectus and the complete unit agreement and any supplemental agreements that contain the terms of the units. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit.Thus, the holder of a unit will have the rights and obligations of a holder of each included security.The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date. We will describe in the applicable prospectus supplement the terms of the series of units, including: ● the designation and terms of the units, including whether and under what circumstances the securities comprising the units may be held or transferred separately; and ● any provisions for the issuance, payment, settlement, transfer or exchange of the units or the securities comprising the units. The provisions described in this section, as well as those described under “Description of Capital Stock” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock or warrant included in each unit, respectively. We may issue units in such amounts and in such distinct series as we determine. 5 PLAN OF DISTRIBUTION We may sell the securities being offered hereby in one or more of the following ways from time to time: ● through agents to the public or to investors; ● to one or more underwriters for resale to the public or to investors; ● in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise; ● directly to investors in privately negotiated transactions; ● directly to a purchaser pursuant to what is known as an “equity line of credit” as described below; ● through a combination of these methods of sale; or ● upon exercise of outstanding warrants. The securities that we distribute by any of these methods may be sold, in one or more transactions, at: ● a fixed price or prices, which may be changed; ● market prices prevailing at the time of sale; ● prices related to prevailing market prices;or ● negotiated prices. The accompanying prospectus supplement will describe the terms of the offering of our securities, including: ● the name or names of any agents or underwriters; ● any securities exchange or market on which the common stock may be listed; ● the purchase price and commission, if any, to be paid in connection with the sale of the securities being offered and the proceeds we will receive from the sale; ● any over-allotment options pursuant to which underwriters may purchase additional securities from us; ● any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; ● any public offering price;and ● any discounts or concessions allowed or reallowed or paid to dealers. If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of the sale.The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement.We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate.Subject to certain conditions, the underwriters will be obligated to purchase all the securities offered by the prospectus supplement.We may change from time to time the public offering price and any discounts or concessions allowed or reallowed or paid to dealers. 6 If we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the securities to the dealer, as principal.The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.The names of the dealers and the terms of the transaction will be specified in a prospectus supplement. We may sell the securities directly or through agents we designate from time to time.We will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement.Unless the prospectus supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment. We may also sell securities pursuant to an “equity line of credit”.In such event, we will enter into a common stock purchase agreement with the purchaser to be named therein, which will be described in a Current Report on Form 8-K that we will file with the SEC.In that Form 8-K, we will describe the total amount of securities that we may require the purchaser to purchase under the purchase agreement and the other terms of purchase, and any rights that the purchaser is granted to purchase securities from us.In addition to our issuance of shares of common stock to the equity line purchaser pursuant to the purchase agreement, this prospectus (and the applicable prospectus supplement or post-effective amendment) also covers the resale of those shares from time to time by the equity line purchaser to the public.The equity line purchaser will be considered an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act.Its resales may be effected through a number of methods, including without limitation, ordinary brokerage transactions and transactions in which the broker solicits purchasers and block trades in which the broker or dealer so engaged will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction.The equity line purchaser will be bound by various anti-manipulation rules of the SEC and may not, for example, engage in any stabilization activity in connection with its resales of our securities and may not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities other than as permitted under the Securities Exchange Act of 1934, as amended, or the Exchange Act. We may sell our securities directly or through agents we designate from time to time.We will name any agent involved in the offering and sale of our common stock, and we will describe any commissions we will pay the agent in the prospectus supplement.Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment. We may provide underwriters and agents with indemnification against civil liabilities related to offerings pursuant to this prospectus, including liabilities under the Securities Act, or contribution with respect to payments that the underwriters or agents may make with respect to these liabilities.Underwriters and agents may engage in transactions with, or perform services for, us in the ordinary course of business.We will describe such relationships in the prospectus supplement naming the underwriter or agent and the nature of any such relationship. Rules of the SEC may limit the ability of any underwriters to bid for or purchase securities before the distribution of the shares of common stock is completed.However, underwriters may engage in the following activities in accordance with the rules: ● Stabilizing transactions —Underwriters may make bids or purchases for the purpose of pegging, fixing or maintaining the price of the shares, so long as stabilizing bids do not exceed a specified maximum. ● Options to purchase additional stock and syndicate covering transactions — Underwriters may sell more shares of our common stock than the number of shares that they have committed to purchase in any underwritten offering.This creates a short position for the underwriters.This short position may involve either “covered” short sales or “naked” short sales.Covered short sales are short sales made in an amount not greater than the underwriters’ option to purchase additional shares in any underwritten offering.The underwriters may close out any covered short position either by exercising their option or by purchasing shares in the open market.To determine how they will close the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market, as compared to the price at which they may purchase shares through their option.Naked short sales are short sales in excess of the option.The underwriters must close out any naked position by purchasing shares in the open market.A naked short position is more likely to be created if the underwriters are concerned that, in the open market after pricing, there may be downward pressure on the price of the shares that could adversely affect investors who purchase shares in the offering. ● Penalty bids —If underwriters purchase shares in the open market in a stabilizing transaction or syndicate covering transaction, they may reclaim a selling concession from other underwriters and selling group members who sold those shares as part of the offering. 7 Similar to other purchase transactions, an underwriter’s purchases to cover the syndicate short sales or to stabilize the market price of our common stock may have the effect of raising or maintaining the market price of our common stock or preventing or mitigating a decline in the market price of our common stock.As a result, the price of the shares of our common stock may be higher than the price that might otherwise exist in the open market.The imposition of a penalty bid might also have an effect on the price of shares if it discourages resales of the shares. If commenced, the underwriters may discontinue any of these activities at any time. Our common stock is traded on the NASDAQ Capital Market and on the Tel Aviv Stock Exchange.One or more underwriters may make a market in our common stock, but the underwriters will not be obligated to do so and may discontinue market making at any time without notice.We cannot give any assurance as to liquidity of the trading market for our common stock. Any underwriters who are qualified market makers on the NASDAQ Capital Market may engage in passive market making transactions in that market in the common stock in accordance with Rule103 of RegulationM, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock.Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers.In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum commission or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement. Exercise of Outstanding Warrants We will sell and deliver shares of our common stock directly to those holders who validly exercise certain warrants that were registered under a previous registration statement.No prospectus supplement will be delivered in connection with such transactions.See “Description of Warrants – Outstanding Warrants” on page5 of this prospectus. VALIDITY OF THE SECURITIES Zysman, Aharoni, Gayer and Sullivan & Worcester LLP, New York, New York, passed upon the validity of the securities offered hereby. EXPERTS The consolidated financial statements of Pluristem appearing in our Annual Report on Form10-K for the fiscal year ended June30, 2014, and the effectiveness of the internal control over financial reporting of Pluristem as of June 30, 2014, have been audited by Kost Forer Gabbay & Kasierer, a member of Ernst & Young Global, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference.Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. WHERE YOU CAN FIND MORE INFORMATION We are subject to the reporting and information requirements of the Exchange Act and as a result file periodic reports and other information with the SEC.These periodic reports and other information will be available for inspection and copying at the SEC’s public reference room and the website of the SEC referred to below. We have filed a registration statement on Form S-3 under the Securities Act with the SEC with respect to the shares of our common stock, warrants, preferred stock and units offered through this prospectus.This prospectus is filed as a part of that registration statement and does not contain all of the information contained in the registration statement and exhibits.We refer you to our registration statement and each exhibit attached to it for a more complete description of matters involving us, and the statements we have made in this prospectus are qualified in their entirety by reference to these additional materials. You may read and copy the reports and other information we file with the SEC at the SEC’s Public Reference Room at treet, N.E., Washington D.C. 20549.You may also obtain copies of this information by mail from the public reference section of the SEC, treet, N.E., Washington,D.C. 20549, at prescribed rates.You may obtain information regarding the operation of the public reference room by calling the SEC at 1 (800) SEC-0330.The SEC also maintains a website that contains reports and other information about issuers, like us, who file electronically with the SEC.The address of that website is http://www.sec.gov.This reference to the SEC’s website is an inactive textual reference only, and is not a hyperlink. 8 INCORPORATION OF DOCUMENTS BY REFERENCE We are “incorporating by reference” certain documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents.The information in the documents incorporated by reference is considered to be part of this prospectus.Statements contained in documents that we file with the SEC and that are incorporated by reference in this prospectus will automatically update and supersede information contained in this prospectus, including information in previously filed documents or reports that have been incorporated by reference in this prospectus, to the extent the new information differs from or is inconsistent with the old information. We have filed or may file the following documents with the SEC.These documents are incorporated herein by reference as of their respective dates of filing: ● Our Annual Report on Form10-K for the fiscal year ended June 30, 2014, as filed with the SEC on September 11, 2014; ● Our Current Report on Form 8-K, as filed with the SEC on September 11, 2014; and ● The description of our common stock contained in our Registration Statement on Form8-A, as filed with the SEC on December10, 2007, including any amendments and reports filed for the purpose of updating such description. All documents filed by us pursuant to Section13(a), 13(c), 14 or 15(d) of the Exchange Actuntil all of the securities to which this prospectus relates has been sold or the offering is otherwise terminated, except in each case for information contained in any such filing where we indicate that such information is being furnished and is not to be considered “filed” under the Exchange Act, will be deemed to be incorporated by reference in this prospectus and any accompanying prospectus supplement and to be a part hereof from the date of filing of such documents. We will provide a copy of the documents we incorporate by reference, at no cost, to any person who receives this prospectus.To request a copy of any or all of these documents, you should write or telephone us at MATAM Advanced Technology Park, Building No.5, Haifa, L3 31905, Israel, Attention: Boaz Gur-Lavie. 9 6,800,000 Shares Common Stock Warrants to Purchase up to 4,080,000 Shares of Common Stock PROSPECTUS SUPPLEMENT Sole Placement Agent Maxim Group LLC June 25, 2015

EXHIBIT 10.62   SUPPLY AGREEMENT   This SUPPLY AGREEMENT (“Supply Agreement”) dated as of December 29, 2003 (the “Effective Date”), is made and entered into by and between UNIFIED WESTERN GROCERS, INC., a California corporation (“UWG”), and C & K MARKET, INC. (“Retailer”), with reference to the following facts:   RECITALS   A. UWG is a wholesale distributor to retail grocers of food products and nonfood items (sometimes referred to as “grocery products”), doing business primarily on a cooperative or patronage basis with independent retail grocers that are shareholders of UWG and which shareholders receive patronage dividends based upon the volume of their purchases from UWG.   B. Retailer owns and operates, directly or indirectly (through one of more entities or Affiliates), 49 independent full service retail grocery markets in California and Oregon.   C. The execution and delivery of this Supply Agreement is a condition to UWG’s and Retailer’s obligations to close the transactions contemplated by that certain Series A Preferred Stock Exchange Agreement (the “Exchange Agreement”).   D. UWG and Retailer desire to enter into this Supply Agreement pursuant to which UWG would become Retailer’s primary long-term supplier on the terms set forth herein.   AGREEMENT   NOW, THEREFORE, in consideration of the foregoing, the representations, warranties and agreements set forth in this Supply Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Retailer and UWG hereby agree as follows:   1. Purchase and Sale of Merchandise.   1.1 Subject to the terms of this Supply Agreement, Retailer hereby agrees that Retailer and its Affiliates shall, during the term of this Supply Agreement, purchase from UWG or its Affiliates Merchandise in the product categories in such quantities so as to meet the requirements as set forth in Section 2 below, which Merchandise Retailer and its Affiliates will carry in its retail grocery stores for resale to its customers, and UWG (on behalf of itself and the Suppliers) hereby agrees to sell such Merchandise to Retailer and its Affiliates. Listed on Schedule 1.1 are (i) the retail grocery stores owned or operated by Retailer and (ii) a list of Affiliates of Retailer that own or operate retail grocery stores.   -1- 1.2 Retailer hereby agrees to be fully responsible for its Affiliates and their compliance with the terms of this Supply Agreement, and guarantees full and timely performance, by each of Retailer’s Affiliates, with all of the terms and conditions of this Supply Agreement. If any of Retailer’s Affiliates fail to pay any monies due to a Supplier, then upon receipt of notice from UWG, Retailer shall immediately pay such amount due. Retailer hereby agrees that a breach of this Supply Agreement by any of Retailer’s Affiliates shall be considered a breach by Retailer.   1.3 As Retailer or its Affiliates open new retail grocery markets or as Retailer acquires new Affiliates engaged in the retail distribution of grocery products, the parties hereto hereby agree that such new retail grocery markets and new Affiliates of Retailer shall automatically be covered by the obligations contained in this Supply Agreement. Retailer shall promptly notify UWG of all such new retail grocery markets and new Affiliates, and of all changes in the retail grocery market and Affiliates list on Schedule 1.1. UWG shall have the option at any time, upon notice to Retailer, of (i) requiring the Affiliates to execute a joinder to this Agreement, or (ii) excluding (temporarily or permanently) any Affiliate of Retailer or any particular retail grocery market from being covered by this Supply Agreement. If UWG excludes an Affiliate of Retailer or any particular retail grocery market from coverage by this Supply Agreement, then this Supply Agreement shall continue in effect as to the Retailer and all of its other Affiliates and all of their other retail grocery markets which have not been specifically excluded by UWG.   1.4 Provided that Retailer (i) is not in breach of this Supply Agreement and (ii) is in full compliance with the Standard Terms, then the Merchandise being purchased by Retailer from Supplier will be purchased by Retailer, and sold by Supplier, pursuant to the then current Standard Terms. Retailer hereby agrees to comply with the then current Standard Terms, which shall contain the prices for the Merchandise to be purchased from Suppliers by Retailer pursuant to this Supply Agreement, the service and delivery fees applicable to such Merchandise purchases which are payable by Retailer and other terms (including terms of payment) applicable to such sales of Merchandise. Supplier reserves the right to change the Standard Terms from time to time, in its sole discretion, upon notice to Retailer. Notwithstanding the foregoing, upon Retailer’s acceptance of any Merchandise, Retailer shall be deemed to have accepted Supplier’s then current Standard Terms with regard to such Merchandise even if notice has not been given of changes thereto. Supplier’s individual sales prices for food products or nonfood items will change from time to time, and no advance notice to Retailer need be given of such changes.   1.5 Each Purchaser hereby agrees that (i) Supplier shall have no obligation to sell to Retailer any food products or nonfood items which are not stocked   -2- by Supplier, (ii) Supplier may, at any time and in its sole discretion, discontinue the stocking of any items, types or categories of food products or nonfood items, and (iii) Supplier may, at any time and in its sole discretion, impose quantity or other limitations, restrictions or requirements on, or in connection with, the food products or nonfood items being sold to Retailer.   1.6 Retailer shall place its purchase orders for Merchandise in accordance with Supplier’s instructions which may be specified to Retailer from time to time. All orders shall be subject to Supplier’s approval and acceptance.   1.7 If Retailer has failed to pay any Supplier, when due, for Merchandise previously shipped, then all Suppliers may, in their sole discretion, delay shipment of any or all other purchase orders of Retailer or cancel any or all out-standing purchase orders of Retailer.   2. Purchasing Covenants.   2.1 Minimum Percentage. For each calendar quarter throughout the Term, Retailer and each of Retailer’s Affiliates shall purchase Merchandise in the Product Categories, the total aggregate price of which after taking into account any discounts and allowances shall be equal in amount to not less than 55% of Retailer’s gross aggregate cost of sales during such quarter of all Merchandise in all stores owned or operated by Retailer and its Affiliates during such quarter.   2.2 Minimum Annual Purchases. For each calendar year throughout the Term, Retailer, together with its Affiliates, shall purchase Merchandise in the Product Categories from Supplier equal to at least $125,000,000.   INITIALS:              (Retailer)              (UWG)   3. Additional Covenants.   3.1 UWG Preference. Retailer agrees that if Retailer or any of Retailer’s Affiliates shall contemplate any Change in any source of supply for any Merchandise not purchased from UWG or its Affiliates then Retailer shall: (a) give UWG as much advance written notice as is practicable under the circumstances, but in no event less than thirty (30) days, to specify the categories and quantities of Merchandise involved and other relevant information with respect to the proposed Change; (b) before committing to a source of supply, permit UWG to present to Retailer terms and conditions under which UWG would be willing to supply the involved Merchandise to Retailer; and (c) purchase such involved Merchandise from UWG unless Retailer establishes that the overall and aggregate material terms and conditions of purchasing such Merchandise from UWG (based upon price, quality and service overall and in the aggregate as offered by UWG and its Affiliates) are not   -3- generally competitive to the overall and aggregate material terms and conditions offered by another prospective supplier proposed to be selected by Retailer. As used herein, “Change” shall mean any commitment of any type, whether written or oral, and any renewal, modification or extension of any agreements to purchase merchandise, by and between Retailer and any supplier other than UWG involving aggregate purchases by Retailer of products in excess of $500,000 in any twelve (12) month period. Without any way modifying the obligations set forth in this Paragraph, within thirty (30) days of the effective date of this Supply Agreement, Retailer shall provide UWG with a listing of any agreements to purchase products or Merchandise between Retailer and any supplier other than UWG in effect as of the effective date of this Supply Agreement.   3.2 Additional Products. With respect to Merchandise currently not offered by UWG or its Affiliates (collectively, “Additional Products”), Retailer shall initially be free to purchase such Additional Products from whatever source it deems appropriate; provided that UWG and Retailer agree to cooperate in mutual good faith to encourage Retailer and each of Retailer’s Affiliates to purchase Additional Products from UWG or its Affiliates when UWG or its Affiliates is able to supply the Additional Products to Retailer so long as the overall and aggregate material terms and conditions of purchasing Additional Products from UWG or its Affiliates (based upon price, quality and service overall and in the aggregate) are general competitive with the overall and aggregate material terms and conditions offered by other similar full-line wholesale grocery suppliers serving Retailer’s geographical area for similar goods, merchandise and services. The term “generally competitive” is intended to mean as to price that, on the average and in the aggregate, and taking into account the totality of the financial accommodations and contractual relationships between UWG and its Affiliates, on the one hand, and Retailer and its Affiliates, on the other hand, the prices for merchandise or Additional Products are generally the same, although there may be some prices for individual merchandise products or individual Additional Products which are higher than prices for such individual products charged by other suppliers.   3.3 Trademarks and Tradenames. Retailer hereby agrees, on behalf of itself and each of Retailer’s Affiliates, that (i) nothing in this Supply Agreement shall give Retailer any right, title or interest in any trademarks, service marks, or trade secrets of UWG, its Affiliates, or any Supplier, (ii) Retailer shall not apply for or obtain a registration for any trademark or service mark of UWG, its Affiliates, any Supplier, or any similar mark thereto, (iii) Retailer shall not use the corporate name, trade name, trademark or service mark of UWG, its Affiliates, or any Supplier, or any confusingly similar name or mark, without the prior written consent (on a case-by-case basis) of UWG, its Affiliates or a Supplier, as the case may be, (iv) all usage by Retailer, once approved by UWG, its Affiliates, or a Supplier, as the case may be, of any name, trademark or service mark shall, at all times, be of the highest quality and standards in order to maintain the good name and reputation of UWG, its Affiliates,   -4- any Supplier, and such name and marks, and not to confuse, mislead or deceive the public, (v) upon expiration or termination of this Supply Agreement, Retailer shall cease all usage of any name or mark of UWG, its Affiliates, and any Supplier, and (vi) the obligations of this Section 3.3 shall survive any expiration or termination of this Supply Agreement.   4. Term and Termination.   4.1 Term. This Supply Agreement shall become effective as of the date of this Supply Agreement and shall continue in effect until the latter of (i) the tenth anniversary of the Effective Date, (ii) the date on which all Financing Obligations are no longer outstanding (the “Term”), unless earlier terminated in accordance with Section 4.2.   4.2 Termination. If not sooner terminated, this Supply Agreement may be terminated as follows:   (a) In the event either party hereto breaches or otherwise fails to perform any part of this Supply Agreement (other than a payment breach), then the party hereto not in breach shall notify (in writing) the party in breach and demand that such breach or such failure to perform be corrected within a stipulated period, which period shall not be less than thirty (30) days following notification. If the party in breach fails to correct the breach within the period stated in the written notice of demand for correction, the other party may, in its sole discretion, immediately terminate this Supply Agreement by giving the party in breach written notice of termination; provided, however, that if such breach cannot reasonably be corrected within the period stated in the written notice of demand for correction, the other party shall not have the right to immediately terminate the Supply Agreement until such breach could be reasonably corrected so long as the party in breach has undertaken reasonable action to correct such breach and is continuing to diligently pursue such corrective action.   (b) UWG may terminate this Supply Agreement in the event Retailer shall: (i) file, or have filed against it, a petition to declare it insolvent or bankrupt, (ii) make an assignment for the benefit of its creditors, (iii) be dissolved or liquidated, (iv) cease to conduct business, (v) apply for or consent to the appointment of a receiver, trustee, or liquidator, or (vi) fail to pay its debts and obligations as they mature in accordance with normal business practices.   (c) Notwithstanding Section 4.2(a) hereof, UWG may terminate this Supply Agreement upon written notice to Retailer at any time upon the occurrence of any one or more of the following: (i) Retailer’s failure   -5- to pay when due any invoice due Supplier; (ii) Retailer’s failure to fulfill the purchasing covenants in Section 2 of this Agreement, (iii) Retailer’s or any of its Affiliate’s payment default under any financing agreement, including but not limited to any promissory note, guaranty, lease, sublease or security agreement, in connection with any equity investment, loan of money, lease or financial support transaction between UWG or its Affiliates and Retailer or its Affiliates, (iv) Retailer ceases to be a member-patron of UWG in good standing, (v) Retailer’s sale of all or substantially all of its assets, or (vi) a Change in Control of Retailer.   5. Record Keeping and Reporting Requirements.   5.1 Records and Accounts. Retailer shall maintain at its principal place of business accurate records as shall be necessary to verify Retailer’s compliance with this Supply Agreement. Within a reasonable time period after UWG’s request, Retailer shall complete such reports and supply such information as may be reasonably requested by UWG or any of its Affiliates to verify compliance with, or facilitate performance under, this Supply Agreement.   5.2 Inspection. From time to time, upon reasonable notice during ordinary business hours, Retailer shall permit UWG, through UWG’s own officers or employees or through a firm of public accountants selected by UWG, to inspect the records described in Section 5.1 and to take copies thereof.   5.3 Reporting Requirements. Within forty-five (45) days and ninety (90) days after the end of each fiscal quarter and each fiscal year end, respectively, of Retailer, Retailer shall deliver to UWG a calculation reflecting whether Retailer has complied with its Purchase obligations pursuant to this Agreement.   6. Remedies.   6.1 Remedies for Breach by Retailer. Retailer acknowledges that UWG’s business is a cooperative business dependent upon the collective purchasing power of its member-patrons for efficient operation and that UWG and its member-patrons would be irreparably damaged in amounts difficult to ascertain by any breach of this Supply Agreement by Retailer. Accordingly, Retailer agrees that, in addition to any other remedy available under applicable laws, UWG shall be entitled to the remedy of specific performance of this Supply Agreement in the event of a material breach of this Supply Agreement by Retailer. In the event either party elects to terminate this Supply Agreement by reason of a breach of this Supply Agreement by the other, such election to terminate shall not constitute an election of remedies and the nondefaulting party shall be entitled to pursue any other remedy available at law or in equity, including but not limited to injunctive relief, without bond, security, or proof of actual damages.   -6- 6.2 Break-up Fee. In recognition of the value associated with this Supply Agreement, Retailer hereby agrees that in the event that this Supply Agreement is breached in any material respect by Retailer or in the event that this Supply Agreement is terminated at any time before the expiration of its Term for any reason other than a breach by UWG of its obligations under this Supply Agreement (a “Break-Up Event”), then UWG shall be entitled to a break-up fee equal to the product of (i) Retailer’s (together with Retailer’s Affiliates) average weekly purchases from Supplier for the one year period prior to the Break-Up Event (or the period since the Effective Date if the Break-Up Event occurs prior to the first anniversary of the Effective Date) multiplied by 1% and (ii) the number of delivery weeks remaining until the tenth anniversary of the Effective Date. The foregoing payment shall be due and payable on the effective date of Break-Up Event and if not paid shall accrue interest at the maximum rate permitted by law from the due date until the amount is paid in full by Retailer. The parties hereto have considered this issue and agree that actual damages would be extremely difficult and impracticable to determine in such event, that this solution represents a reasonable estimate of such damages, and, therefore, hereby adopt this provision as a liquidated damages provision.     6.3 Obligations Existing at Termination. Expiration or termination of this Supply Agreement shall not release either party to this Supply Agreement from any liability or obligation which at the time of expiration or termination is already accrued to the other party or which thereafter may accrue with respect to an act or omission arising either prior to such expiration or termination or after such expiration or termination when there is a continuing obligation.   7. Force Majeure. Anything to the contrary in this Supply Agreement notwithstanding, neither party to this Supply Agreement shall be liable to the other party for any loss, injury, delay, damages, or other casualty suffered or incurred by such other party due to riots, storms, fires, earthquakes, explosions, embargoes, directives of any governmental agency, any other law or regulation, litigation or labor dispute, acts of God, war, shortage of supply, or any other cause that is beyond the reasonable control of either party to this Supply Agreement. Any failure or delay by either party hereto in performance of any of its obligations under this Supply Agreement due to one or more of the foregoing causes shall not be considered as a breach of this Supply Agreement.   8. Miscellaneous   8.1 Cooperation. Each of the parties hereto shall use such party’s reasonable efforts to take or cause to be taken all actions, to execute such documents, to cooperate with the other party hereto with respect to all actions, and to do or cause to be done all things necessary, proper or advisable, in each case to consummate and make effective the transactions contemplated by this Supply Agreement.   -7- 8.2 Entire Supply Agreement. This Supply Agreement (including the Schedules specifically referenced herein constitutes the entire agreement among the parties hereto with regard to the subject matter hereof, and supersede any and all other agreements, arrangements, and understandings, oral or written, among the parties hereto with respect to the subject matter hereof. No representation, promise, inducement, statement or intention has been made by any party hereto that is not embodied herein, and no party shall be bound by or liable for any alleged representation, promise, inducement, or statement not so set forth herein.   8.3 Amendments. This Supply Agreement shall not be modified or amended except by an instrument in writing executed by each of the parties hereto.   8.4 Successors. This Supply Agreement and all of the provisions hereof shall be successors, transferees and assignees; provided, however, that Retailer may not assign or transfer this Supply Agreement or any interest herein, either directly or indirectly, in whole or in part, without the prior written consent of UWG.   8.5 Waiver. Any waiver of a provision of this Supply Agreement or any failure to perform under this Supply Agreement must be in writing signed by the party waiving its rights and shall apply only in the specific instance and for the specific purpose given. The giving of a waiver in one instance or for one purpose shall not create any implied obligation to give a waiver in another instance or for another purpose.   8.6 Headings. The headings in this Supply Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision of this Supply Agreement.   8.7 Severability. In case any one or more of the provisions contained in this Supply Agreement should be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The provisions of this Supply Agreement are intended to be severable. The parties agree to cooperate to provide a revised provision to replace any invalid, illegal or unenforceable provision so that such new provision is valid, legal and enforceable to the maximum extent permitted under the law.   8.8 Applicable Law and Interpretation. This Supply Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State   -8- of California, without regard to principles of conflicts of law. No provision of this Supply Agreement shall be construed against any party by reason of that party having drafted the same.   8.9 Counterparts. This Supply Agreement may be executed and delivered in   8.10 Attorneys’ Fees. In the event of any dispute among the parties hereto relating to the subject matter of this Supply Agreement, the prevailing party shall be entitled to recover, in addition to any other damages assessed, its attorneys’ fees and costs incurred in the resolution of such dispute.   8.11 Notices. Every Notice shall be served personally or delivered by postage prepaid first class, certified return receipt requested, United States Mail or delivered by prepaid reputable overnight carrier that can confirm receipt (such as Federal Express) or by facsimile addressed to the parties at the addresses listed beneath their signatures to this Supply Agreement. Any Notice shall be deemed received, in the case of personal delivery, actual receipt; or in the case of mailing, the date of receipt or rejection as noted on the official receipt provided by the United States Postal Service; or in the case of overnight delivery, one (1) business day if timely deposited with the overnight carrier and telephone or other confirmation of delivery on such business day; or in the case of facsimile, commencement of the next business day with facsimile receipt of completed transmission. Any party may change its address by a notice given to the other party in the manner set forth above.   8.12 Third-Party Beneficiary. Each of UWG’s Affiliates is a third-party beneficiary of this Supply Agreement.   8.13 Dispute Resolution. All disputes arising under this Supply Agreement that cannot be amicably resolved shall be settled by binding arbitration in Los Angeles County, California, and judgment upon the award rendered may be entered in any court having jurisdiction thereof; provided, however, that if equitable relief is sought (including injunctive relief) by a party hereto for a breach of this Supply Agreement, then such party may, in its sole discretion, enforce such rights or seek such equitable relief by court action. Except as provided below, the arbitration shall proceed in accordance with the laws of the State of California. Any party requesting arbitration shall serve a written demand for arbitration on the other party. The demand shall set forth a statement of the nature of the dispute, the amount involved and the remedies sought. No later than twenty (20) calendar days after a demand for arbitration is served, the parties shall jointly select and appoint a retired judge of the Los Angeles County Superior Court to act as the arbitrator. In the event that the parties do not agree on the selection of an arbitrator, the party seeking arbitration shall apply to the Los Angeles County Superior Court for appointment of a   -9- retired judge to serve as an arbitrator. No later than ten (10) calendar days after appointment of an arbitrator, the parties shall jointly prepare and submit to the arbitrator a set of rules for arbitration. In the event that the parties cannot agree on the rules for the arbitration, the arbitrator shall establish the rules. No later than ten (10) calendar days after the arbitrator is appointed, the arbitrator shall schedule the arbitration for a hearing to commence on a mutually convenient date. The hearing, which shall be in the English language, shall commence no later than one hundred twenty (120) calendar days after the arbitrator is appointed and shall continue from day to day until completed. The arbitrator shall issue his or her award in writing no later than twenty (20) calendar days after the conclusion of the hearing. The arbitration award shall be final and binding regardless of whether any party fails or refuses to participate in the arbitration. The arbitrator is empowered to hear and determine all disputes between the parties hereto concerning the subject matter of this Supply Agreement, and the arbitrator may award money damages (but specifically not punitive damages), injunctive relief, specific performance, rescission, restitution, costs, and attorneys’ fees. In the event that any party serves a proper demand for arbitration under this Supply Agreement, all parties may pursue discovery in accordance with California Code of Civil Procedure Section 1283.05, the provisions of which are incorporated herein by reference, with the following exceptions: (a) The parties hereto may conduct all discovery, including depositions for discovery purposes, without leave of the arbitrator; and (b) all discovery shall be completed no later than the commencement of the arbitration hearing or one hundred twenty (120) calendar days after the date that a proper demand for arbitration is served, whichever occurs earlier, unless upon a showing of good cause the arbitrator extends or shortens that period. The arbitrator shall not have the power to amend this Supply Agreement in any respect.   8.14 WARRANTY DISCLAIMER. SUPPLIER DOES NOT WARRANT THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE MERCHANDISE OR THE PERFORMANCE OR NONINFRINGEMENT THEREOF, DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO MERCHANDISE, SPECIFICATIONS, SUPPORT, SERVICE OR ANYTHING ELSE AND DOES NOT MAKE ANY WARRANTY TO RETAILER’S CUSTOMERS OR AGENTS. SUPPLIER HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS ABOVE ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.   -10- 8.15 Authority. Each party hereto hereby represents and warrants to the other party hereto that (a) it has the full power and authority to enter into and consummate the transactions contemplated in this Supply Agreement, (b) all necessary approvals and consents have been obtained by it to enter into this Supply Agreement, and (c) entering into this Supply Agreement will not violate or cause a breach of any other supply agreements, judgments or orders to which   9. Definitions and Interpretation.   9.1 Definitions. As used in this Supply Agreement, the following terms shall have the respective meanings set forth after each:   “Affiliate” means, with respect to a specified Person, any other Person directly or indirectly controlling or controlled by or under common control with such specified Person. For purposes of this definition, “control” when used with respect to any specified Person means possession, directly or indirectly, of the power to direct, or to cause the direction of, the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.   “Change in Control” shall mean, as to any Person, any change in the direct or indirect power to direct, or cause the direction of management or policies of such Person (whether through change in ownership of securities or partnership or other ownership interests; through acquisition, merger, amalgamation, or otherwise; through change in contractual relationships; or through any other means).   “Financing Obligation” shall mean the obligations incurred by Retailer pursuant to the Transaction Documents (as defined in the Exchange Agreement) and all other obligations incurred by Retailer to UWG or its Affiliates in connection with any other equity investments, leases, subleases or loans to Retailer or guaranties or credit support provided to Retailer by UWG or its Affiliates.   “GAAP” shall mean United States generally accepted accounting principles and practices, as such principles and practices are applied on a consistent basis with the principles and practices on which Retailer’s historical consolidated financial statements are based.   “Merchandise” shall mean any and all goods that the Retailer purchases, manufacturers, or otherwise obtains for resale to its customers at any retail location owned or controlled by Retailer from time to time during the term of this Supply Agreement.   -11- “Person” shall mean any individual, corporation, partnership, joint venture, trust unincorporated organization or a government or any agency of political subdivision thereof.   “Product Categories” shall mean all UWG warehouse and program offerings as they may exist from time to time.   “Standard Terms” shall mean the terms and conditions for the distribution of goods and services by UWG as set forth in UWG’s Articles of Incorporation, Bylaws, rules, regulations, policies and announcements which govern the relationship between UWG and its member-patrons generally, or between UWG and any restricted class of its member-patrons that includes Retailer (which restricted class may be based on such factors as volume of purchases, size of orders or other factors related to the manner in which UWG conducts business). “Standard Terms” shall include informal rules, regulations, and policies adopted by UWG in written or unwritten form to govern such relationship, including ad hoc allocation policies adopted by UWG in times of merchandise scarcity.   “Supplier” means, as applicable, UWG, any Affiliates of UWG, or any other Person designated by UWG or an Affiliate of UWG with whom UWG or such Affiliate has a business relationship regarding such Person’s supplying food products or nonfood grocery items to UWG’s member-patrons or customers.   9.2 Accounting Terms. All accounting terms not specifically defined in this Supply Agreement shall be construed in conformity with, and all financial data required to be submitted by this Supply Agreement shall be prepared in conformity with, GAAP.     -12- IN WITNESS WHEREOF, UWG and Retailer have each executed this Supply Agreement by their respective duly authorized officers as of the date first set forth above.   “Retailer”       “UWG” C & K MARKET, INC.       UNIFIED WESTERN GROCERS, INC. By:   /s/ Doug Nidiffer       By:   /s/ Christine Neal     Doug Nidiffer           Christine Neal Its:   President       Its:   Treasurer Address:       Address: 615 5th Street       5200 Sheila Street Brookings, OR 97415       Commerce, California 90040 Attn: Rex Scoggins       Attn: Chief Financial Officer Telecopy: (541) 469-6717       Facsimile: (323) 265-4261                 Unified Western Grocers, Inc.         5200 Sheila Street         Commerce, California 90040         Attn: General Counsel         Facsimile: (323) 265-3716   -13- SCHEDULE 1.1   Stores Owned or Operated by Retailer:   Store No & Location   Store No & Location   Store No & Location   Store No & Location Ray’s Food Place #1 906 Chetco Ave Brookings, OR 97415   Ray’s Food Place #18 66 Michigan Avenue Bandon, OR 97411   Ray’s Food Place #36 15930 Dam Road Clearlake, CA 95422   Ray’s Food Place #48 190 Emerald Parkway Creswell, OR 97426 Shop Smart #2 97900 Shopping Ctr Ave. Harbor, OR 97415   Ray’s Food Place #23 175 N. Weed St. Weed, CA 96094   Ray’s Food Place #37 1500 Anna Sparks Way McKinleyville, CA 95519   Ray’s Shop Smart #49 953 Northcrest Dr. Crescent City, CA 95531 Ray’s Food Place #4 Highway 96 Hoopa, CA 95546   Ray’s Food Place #24 160 Morgan Way Mt. Shasta, CA 96067   Ray’s Food Place #38 3460 Broadway Eureka, CA 95503   Ray’s Food Place #50 48067 Highway 58 Oakridge, OR 97463 Ray’s Food Place #5 506 Main Street Rogue River, OR 97537   Ray’s Food Place #25 124 Collier Way Etna, CA 96027   Ray’s Food Place #39 25013 Hwy 126 Veneta, OR 97487   Ray’s Food Place #51 35831 Hwy 58 Pleasant Hill, OR 97455 Ray’s Food Place #7 5000 Valley West Blvd. Arcata, CA 95521   Ray’s Food Place #26 11307 Main Street Ft. Jones, CA 6032   Ray’s Food Place #40 1260 Lake Blvd. Davis, CA 95616   Ray’s Food Place #52 43622 Highway 299 E Fall River Mills, CA 96028 Ray’s Food Place #8 29560 Ellensburg Ave Gold Beach, OR 97444   Ray’s Food Whse #27 2525 Washburn Way Klamath Falls, OR 97603   Ray’s Food Place #41 210 SW Centuty Dr Bend, OR 97702   Ray’s Food Place #54 51370 Hwy 97 LaPine, OR 97739 Ray’s Food Place #9 126 E Pine Street Central Point, OR 97502   Ray’s Shop Smart #28 205 Watkins Street Cave Junction, OR 97523   Ray’s Food Place #42 1139 S Cloverdale Blvd Cloverdale, CA 95425   Ray’s Food Place #55 1555 Oregon Street Port Orford, OR 97465 Ray’s Food Place #10 735 N Main Street Phoenix, OR 97535   Ray’s Shop Smart #29 498 S. Pacific Highway Tri City, OR 97457   Ray’s Food Place #43 868 2nd Avenue Gold Hill, OR 97525   PriceLess Foods #56 811 East Central Sutherlin, OR 97479 Ray’s Food Place #12 3500 Merlin Rd. Merlin, OR 97526   Ray’s Food Place #30 625 M Street   Ray’s Food Place #44 580 NE Broadway Waldport, OR 97394   Ray’s Food Place #57 4601 Carnes Rd. Roseburg, OR 97470 Murphy Select Market #14 7200 Williams Hwy Grants Pass, OR 97533   Ray’s Food Place #31 121 Montague Rd. Yreka, CA 96097   Ray’s Food Place #45 445 W. Hwy 20 Sisters, OR 97759   PriceLess Foods #58 151 Douglas Blvd. Winston, OR 97496 Ray’s Food Place #15 301 Fred Haight Drive Smith River, CA 95567   Ray’s Shop Smart #32 3430 Redwood Ave. Redway, CA 95560   PriceLess Foods #46 915 S. Main Street Yreka, CA 96097   Ray’s Food Place #59 330 Dakota Street Sutherlin, OR 97479 Ray’s Food Place #17 909 South Main St. Myrtle Creek, OR 97457   Ray’s Food Place #33 1718 S Main Street Willits, CA 95490   Ray’s Food Place #47 2009 Main Street Fortuna, CA 95540   Ray’s Food Place #60 1535 NE 3rd Prineville, OR 97754             Ray’s Food Place #61 11100 Hwy 62 Eagle Point, OR 97524   -14-

Exhibit 10.3   Execution Version   GUARANTY AGREEMENT   (Term Loan Agreement)   This Guaranty Agreement dated as of January 25, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Guaranty”) is executed by (a) the undersigned Persons identified on the signature pages attached hereto, and (b) each Person that becomes a “Guarantor” hereunder pursuant to the terms of Section 16 hereof (each such Person together with the Persons identified under the caption “Guarantors” on the signature pages attached hereto, collectively, the “Guarantors” and each individually a “Guarantor”) in favor of Bank of America, N.A., as Administrative Agent (as defined in the below described Term Loan Agreement) for the ratable benefit of the Lender Parties (as defined in the Term Loan Agreement).   INTRODUCTION   A.                                    EnLink Midstream, LLC, a Delaware limited liability company (the “Borrower”), the lenders party thereto from time to time (each individually a “Lender” and collectively the “Lenders”), and Bank of America, N.A., as Administrative Agent, are parties to that certain Term Loan Agreement dated as of December 11, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Term Loan Agreement”).   B.                                    Each Guarantor is either (i) a Subsidiary (as defined in the Term Loan Agreement) of the Borrower or (ii) in the case of EnLink Midstream, LLC, the parent company of the Borrower, and in either case will derive substantial direct and indirect benefits from the transactions contemplated by the Term Loan Agreement and the other Loan Documents (as defined in the Term Loan Agreement).   C.                                    Each Guarantor is executing and delivering, or becoming a party to, this Guaranty (i) to induce the Lenders to provide Loans under the Term Loan Agreement and (ii) intending it to be a legal, valid, binding, enforceable and continuing obligation of such Guarantor.   consideration, the receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby agrees as follows:   Section 1.                                           Definitions.  All capitalized terms not otherwise defined in this Guaranty that are defined in the Term Loan Agreement shall have the meanings assigned to such terms by the Term Loan Agreement.   Section 2.                                           Guaranty.   (a)                                 Each Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual payment and performance, when due, whether at stated maturity, by acceleration or otherwise, of all Obligations (collectively, the “Guaranteed Obligations”).  Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by: (i) the Borrower or any other Loan Party to the Administrative Agent or any other Lender under the Loan Documents, and (ii) the Borrower or any other Loan Party to the extent constituting Obligations, in any event, but for the fact that they are unenforceable or not allowable due to insolvency or the existence of a bankruptcy, reorganization or similar proceeding involving the Borrower or such other Loan Party.     (b)                                 Anything contained in this Guaranty to the contrary notwithstanding, the obligations of any Guarantor under this Guaranty on any date shall be limited to a maximum aggregate amount equal to the largest amount that would not, on such date, render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code of the United States or any applicable provisions of comparable laws relating to bankruptcy, insolvency, or reorganization, or relief of debtors (collectively, the “Fraudulent Transfer Laws”), but only to the extent that any Fraudulent Transfer Law has been found in a final non-appealable judgment of a court of competent jurisdiction to be applicable to such obligations as of such date, in each case:   (1)                                 after giving effect to all liabilities of each Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws, but specifically excluding:   (i)                                     any liabilities of such Guarantor in respect of intercompany indebtedness owing to the Borrower or other Affiliate of the Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder; and   (ii)                                  any liabilities of such Guarantor under this Guaranty; and   (2)                                 after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, reimbursement, indemnification or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreement.   (c)                                  This is a guaranty of payment and not of collection and the Guarantor shall make all payments hereunder without offset or counterclaim.   Section 3.                                           Guaranty Absolute.  Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Lender Party with respect thereto.  The obligations of each Guarantor under this Guaranty are joint and several and independent of the obligations of any other Person under the Loan Documents, and a separate action or actions may be brought and prosecuted against any Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Person or whether the Borrower or any other Person is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following:   (a)                                 any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto or any part of the Guaranteed Obligations being irrecoverable;   (b)                                 any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of any Person under the Loan Documents or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Borrower or otherwise; provided that this clause (b) shall not limit the terms of Section 10.01 of the Term Loan Agreement with respect to the Borrower;   (c)                                  any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Guaranteed Obligations;   2   (d)                                 any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations;   (e)                                  any change, restructuring or termination of the corporate structure or existence of the Borrower, any other Loan Party, or   (f)                                   any failure of any Lender Party to disclose to the Borrower or any other Guarantor any information relating to the business, condition (financial or otherwise), operations, properties or prospects of any Person now or in the future known to any Lender Party (and each Guarantor hereby irrevocably waives any duty on the part of any Lender Party to disclose such information);   (g)                                  any signature of any officer of the Borrower or any other Person being mechanically reproduced in facsimile or otherwise; or   (h)                                 any other circumstance or any existence of or reliance on any representation by any Lender Party that might otherwise constitute a defense available to, or a discharge of, the Borrower, any other Guarantor or any other guarantor, surety or other Person (other than Payment in Full (as defined below)).   Section 4.                                           Continuation and Reinstatement, Etc.  Each Guarantor agrees that, to the extent that payments of any of the Guaranteed Obligations are made or deemed made pursuant to set-off rights, and such payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, or otherwise required to be repaid, then to the extent of such repayment the Guaranteed Obligations shall be reinstated and continued in full force and effect as of the date such initial payment occurred.   Section 5.                                           Waivers and Acknowledgments.   (a)                                 Each Guarantor hereby waives promptness, diligence, presentment, notice of acceptance and any other notice (other than any notices required by the Loan Documents) with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that any Lender Party exhaust any right or take any action against the Borrower or any other Person.   (b)                                 Each Guarantor hereby irrevocably waives any right to revoke this Guaranty, and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.   (c)                                  Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements involving the Borrower and the other Loan Parties contemplated by the Loan Documents, and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.   Section 6.                                           Subrogation and Subordination.   (a)                                 Each Guarantor will not exercise any rights that it may now have or hereafter acquire against the Borrower or any other Guarantor to the extent that such rights arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Lender Party against the Borrower or any other   3   Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower or any other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Payment in Full has occurred.  If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time until the Payment in Full has occurred, such amount shall be held in trust for the benefit of the Lender Parties and shall forthwith be paid to the Administrative Agent to be credited and applied to the Guaranteed Obligations and any and all other amounts payable by any Guarantor under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents.   (b)                                 Each Guarantor hereby agrees that the payment of any and all Indebtedness now or hereafter owing to such Guarantor by the Borrower or any other Guarantor (herein collectively called the “Subordinated Debt”) is and will be subordinate and junior in right of payment and enforcement to the prior payment and enforcement in full of the Guaranteed Obligations.  Whenever any Event of Default has occurred and is continuing, the Administrative Agent may, in its sole discretion, give notice to the Borrower and the other Guarantors that no payment shall be made or accepted on any Subordinated Debt, and upon receipt of such notice no Guarantor will make or receive any payment on Subordinated Debt unless and until the Payment in Full has occurred, all Events of Default are waived or cured, or the Administrative Agent consents to such payment.  In addition, whenever any Event of Default has occurred and is continuing, no Guarantor will exercise or enforce any creditors’ rights or remedies that it may have against the Borrower or any Subsidiary, or foreclose, repossess, sequester, or otherwise institute any action or proceeding (whether judicial or otherwise, including the commencement of any insolvency proceeding) to enforce any Subordinated Debt unless and until the Payment in Full has occurred, all Events of Default are waived or cured, or the Administrative Agent otherwise consents.   Section 7.                                           Representations and Warranties.  Each Guarantor hereby represents and warrants as follows:   (a)                                 Such Guarantor benefits directly or indirectly from executing this Guaranty.   (b)                                 Such Guarantor has, independently and without reliance upon any Lender Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Guaranty, and such Guarantor has established adequate means of obtaining from the Borrower and each other relevant Person on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the business, condition (financial and otherwise), operations, properties and prospects of the Borrower and each other relevant Person.   (c)                                  The obligations of such Guarantor under this Guaranty are the valid, binding and legally enforceable obligations of such Guarantor (except (i) as limited by applicable Debtor Relief Laws and general principles of equity which may limit the right to obtain equitable remedies (whether applied by a court of law or equity) and (ii) as to the enforceability of provisions for indemnification and the limitations thereon arising as a matter of law or public policy) and the execution and delivery of this Guaranty by such Guarantor has been duly and validly authorized in all respects by such Guarantor, and the Person who is executing and delivering this Guaranty on behalf of such Guarantor has full power, authority and legal right to so do, and to observe and perform all of the terms and conditions of this Guaranty on such Guarantor’s part to be observed or performed.   Section 8.                                           Right of Set-Off.  Upon the occurrence and during the continuance of any Event of Default, any Lender or the Administrative Agent and any other Lender Party is hereby authorized at any time, to the fullest extent permitted by law, to set off and apply any deposits (general or special (except trust and escrow accounts), time or demand, provisional or final) and other indebtedness owing by   4   such Lender Party to the account of any Guarantor against any and all of the obligations of any Guarantor under this Guaranty, irrespective of whether or not such Lender Party shall have made any demand under this Guaranty and although such obligations may be contingent and unmatured.  Such Lender Party shall promptly notify any Guarantor after any such set-off and application is made, provided that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of the Lender Parties under this Section 8 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which any Lender Party may have.   Section 9.                                           Amendments, Etc.  No amendment or waiver of any provision of this Guaranty and no consent to any departure by any Guarantor therefrom shall in any event be effective, except in accordance with Section 10.01 of the Term Loan Agreement, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.   Section 10.                                    Notices, Etc.  All notices and other communications provided for hereunder shall be given and become effective as provided in Section 10.02 of the Term Loan Agreement and shall be sent (a) if to any Guarantor, to such Guarantor at the address of the Borrower specified in or pursuant to the Term Loan Agreement and (b) if to the Administrative Agent, or any Lender, at its address specified in or pursuant to the Term Loan Agreement.   Section 11.                                    No Waiver: Remedies.  No failure on the part of the Administrative Agent or any other Lender Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder right. The rights and remedies herein provided are cumulative and not exclusive of any other rights, powers, privileges or remedies provided by law or in equity or under any other instrument, document or agreement now existing or hereafter arising.   Section 12.                                    Continuing Guaranty: Assignments under the Term Loan Agreement.  There are no conditions precedent to the effectiveness of this Guaranty. This Guaranty is a continuing guaranty and shall:   (a)                                 remain in full force and effect, except with respect to any Guarantor released from its obligations hereunder pursuant to Section 10.01(e) of the Term Loan Agreement, until all Guaranteed Obligations (other than contingent reimbursement or indemnification obligations for which no claim has been made) are paid in full in immediately available funds and the Commitments are terminated (“Payment in Full”).  Notwithstanding the foregoing, in the event that any payment by or on behalf of the Borrower or any Guarantor is made, or any Lender Party exercises its right of setoff, in respect of the Guaranteed Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any Lender Party in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, this Guaranty shall be automatically revived and reinstated in full force and effect in respect of the amount of such payment or proceeds, all as if such payment had not been made or such setoff had not occurred and whether or not such Lender Party is in possession of or has released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of each Guarantor under this paragraph shall survive termination of this Guaranty;   (b)                                 be binding upon each Guarantor and its successors and assigns; and   (c)                                  inure to the benefit of and be enforceable by the Administrative Agent, each Lender, and their respective successors, permitted transferees and permitted assigns, provided that, notwithstanding anything contained in this Guaranty to the contrary, no beneficiary of this Guaranty other   5   than the Administrative Agent shall have any right individually to enforce this Guaranty, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the beneficiaries hereof in accordance with the terms hereof.  By accepting the benefit of this Guaranty, each such beneficiary agrees to the terms of this subsection (c).   Without limiting the generality of the foregoing clause (c), subject to Section 10.06 of the Term Loan Agreement, any Lender Party may assign or otherwise transfer all or any portion of its rights and obligations under the Term Loan Agreement to the extent permitted thereby (including, without limitation, all or any portion of its Commitment, the Loans owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender herein or otherwise, subject, however, in all respects to the provisions of the Term Loan Agreement.  Each Guarantor acknowledges that upon any Person becoming a Lender or the Administrative Agent in accordance with the Term Loan Agreement, such Person shall be entitled to the benefits hereof.   Section 13.                                    Incorporation by Reference.  This Guaranty hereby incorporates by reference the provisions of Section 3.01(a) and (g) of the Term Loan Agreement.   Section 14.                                    GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVER OF JURY TRIAL.   (a)                                 GOVERNING LAW.  THIS GUARANTY 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 GUARANTY AND THE   (b)                                 SUBMISSION TO JURISDICTION.  EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW NEW YORK, BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF IN ANY ACTION, LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK 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 GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER, OR ANY OF THEIR RESPECTIVE AFFILIATES MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY OTHER PARTY HERETO OR THERETO, ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.   (c)                                  WAIVER OF VENUE.  EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF   6   VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION 14.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.   (d)                                 SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.  NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.   (e)                                  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.   Section 15.                                    INDEMNIFICATION.  TO THE EXTENT THAT THE BORROWER WOULD BE REQUIRED TO DO SO PURSUANT TO SECTION 10.04 OF THE TERM LOAN AGREEMENT, EACH GUARANTOR SHALL INDEMNIFY THE INDEMNITEES AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES, SETTLEMENT COSTS, AND RELATED EXPENSES (INCLUDING THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR THE INDEMNITEES), INCURRED BY ANY INDEMNITEE OR ASSERTED AGAINST ANY INDEMNITEE BY ANY PERSON (INCLUDING THE BORROWER OR ANY OTHER GUARANTOR) OTHER THAN SUCH INDEMNITEE AND ITS RELATED PARTIES ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (A) THE EXECUTION OR DELIVERY OF THIS GUARANTY, ANY OTHER LOAN DOCUMENT, OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED  HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR, IN THE CASE OF THE ADMINISTRATIVE AGENT (AND ANY SUB-AGENT THEREOF) AND ITS RELATED PARTIES ONLY, THE ADMINISTRATION OF THIS GUARANTY AND THE OTHER LOAN DOCUMENTS, (B) ANY LOAN OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM, (C) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY ANY GUARANTOR, THE BORROWER, OR ANY OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO ANY GUARANTOR, THE BORROWER, OR ANY OF ITS SUBSIDIARIES, OR (D) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING,   7   WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY THE BORROWER OR ANY OTHER GUARANTOR, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; PROVIDED THAT (A) SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR A BREACH IN BAD FAITH BY AN INDEMNITEE OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS, AND (B) SUCH FEES, CHARGES AND DISBURSEMENTS OF COUNSEL SHALL BE LIMITED TO A SINGLE FIRM OF COUNSEL FOR ALL THE INDEMNITEES AND, IF REASONABLY NECESSARY, A SINGLE FIRM OF LOCAL OR REGULATORY COUNSEL IN EACH APPROPRIATE JURISDICTION AND A SINGLE FIRM OF SPECIAL COUNSEL FOR EACH RELEVANT SPECIALTY, IN EACH CASE FOR ALL SUCH INDEMNITEES, AND, SOLELY IN THE CASE OF AN ACTUAL OR PERCEIVED CONFLICT OF INTEREST, WHERE THE INDEMNITEE AFFECTED BY SUCH CONFLICT INFORMS THE BORROWER OF SUCH CONFLICT, ONE ADDITIONAL FIRM OF COUNSEL IN EACH RELEVANT JURISDICTION FOR THE AFFECTED INDEMNITEE SIMILARLY SITUATED.  THIS SECTION 15 SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.   TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO GUARANTOR OR INDEMNITEE SHALL ASSERT, AND EACH GUARANTOR AND INDEMNITEE HEREBY WAIVES, AND ACKNOWLEDGES THAT NONE OF ITS AFFILIATES SHALL HAVE, ANY CLAIM AGAINST ANY GUARANTOR OR ANY INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS GUARANTY, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR THE USE OF THE PROCEEDS THEREOF; PROVIDED THAT NOTHING CONTAINED IN THIS SENTENCE SHALL LIMIT THE SUCH GUARANTOR’S INDEMNIFICATION OBLIGATIONS TO THE EXTENT SUCH SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARE INCLUDED IN ANY THIRD PARTY CLAIM IN CONNECTION WITH WHICH ANY INDEMNITEE IS OTHERWISE ENTITLED TO INDEMNIFICATION IN THE PARAGRAPH ABOVE.  NO INDEMNITEE SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED TO SUCH UNINTENDED RECIPIENTS BY SUCH INDEMNITEE THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS GUARANTY OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OTHER THAN FOR DIRECT OR ACTUAL DAMAGES RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR THE BREACH IN BAD FAITH OF SUCH INDEMNITEE OF ITS OBLIGATIONS HEREUNDER OR THEREUNDER AS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION.   8   ALL AMOUNTS DUE UNDER THIS SECTION 15 SHALL BE PAYABLE NOT LATER THAN TEN BUSINESS DAYS AFTER DEMAND THEREFOR.  THE AGREEMENTS IN THIS SECTION 15 SHALL SURVIVE THE RESIGNATION OF THE ADMINISTRATIVE AGENT, THE REPLACEMENT OF ANY LENDER, THE TERMINATION OF THE AGGREGATE COMMITMENTS, THE TERMINATION OF ANY LOAN DOCUMENT, AND THE REPAYMENT, SATISFACTION OR DISCHARGE OF ALL THE OTHER GUARANTEED OBLIGATIONS.   Section 16.                                    Additional Guarantors.  Upon the execution and delivery by any other Person of a Guaranty Supplement in substantially the form of Exhibit A attached hereto (each, a “Guaranty Supplement”), such Person shall become a Guarantor hereunder with the same force and effect as if originally named as a Guarantor herein.  The execution and delivery of any Guaranty Supplement shall not require the consent of any other Guarantor hereunder.  The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor as a party to this Guaranty.   Section 17.                                    Severability.  If any provision of this Guaranty is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Guaranty shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.   Section 18.                                    Counterparts. This Guaranty may be executed in counterparts (and by different parties hereto in different counterparts), each of which, when so executed (and any copy of an executed counterpart that is an electronic record), shall constitute an original, and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Guaranty by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Guaranty.   Section 19.                                    NOTICE OF FINAL AGREEMENTS.  THIS GUARANTY AND THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.   THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.     9   Each Guarantor has caused this Guaranty to be duly executed as of the date first above written.     GUARANTORS:       ENLINK MIDSTREAM PARTNERS, LP       By: EnLink Midstream GP, LLC, its general partner             By: /s/ Eric D. Batchelder     Name: Eric D. Batchelder     Title: Executive Vice President and Chief Financial Officer   Signature Page to Guaranty Agreement (Term Loan Agreement)       ADMINISTRATIVE AGENT:       BANK OF AMERICA, N.A., as Administrative Agent           By: /s/ Don B. Pinzon   Name: Don B. Pinzon   Title: Vice President       Exhibit A to Guaranty Agreement   Guaranty Supplement No.        THIS GUARANTY SUPPLEMENT NO.     (this “Guaranty Supplement”) is made as of                    , to the Guaranty Agreement (Term Loan Agreement) dated as of January 25, 2019 (such agreement, together with all amendments, restatements, other modifications and Guaranty Supplements (as such term is defined therein), the “Guaranty”), executed by EnLink Midstream Partners, LP, a Delaware limited partnership, as the initial signatory thereto and each other Person who from time to time thereafter became a party thereto pursuant to Section 16 thereof (each, individually, a “Guarantor” and, collectively, the “Guarantors”), in favor of Administrative Agent (as defined in the Guaranty) for the benefit of the Lender Parties (as used in the Guaranty).   BACKGROUND.   Capitalized terms not otherwise defined herein have the meaning specified in the Guaranty.  The Guaranty provides that additional parties may become Guarantors under the Guaranty by execution and delivery of this Guaranty Supplement to the Administrative Agent.  Pursuant to the provisions of Section 16 of the Guaranty, the undersigned is becoming a Guarantor under the Guaranty.  The undersigned desires to become a Guarantor under the Guaranty in order to induce the Lender Parties to continue to make credit extensions and financial accommodations under the Term Loan Agreement.   AGREEMENT.   consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby agrees as follows:   SECTION 1.                            In accordance with the Guaranty, the undersigned hereby becomes a Guarantor under the Guaranty with the same force and effect as if it were an original signatory thereto as a Guarantor and the undersigned hereby (a) agrees to all the terms and provisions of the Guaranty applicable to it as a Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Guarantor thereunder are true and correct on and as of the date hereof.  Each reference to a “Guarantor” in the Guaranty shall be deemed to include the undersigned.   SECTION 2.                            Except as expressly supplemented hereby, the Guaranty shall remain in full force and effect in accordance with its terms.   SECTION 3.                            THIS GUARANTY SUPPLEMENT, THE GUARANTY 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 GUARANTY SUPPLEMENT AND/OR THE GUARANTY AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.   SECTION 4.                            This Guaranty Supplement hereby incorporates by reference Section 14 of the Guaranty, which Section is deemed to be a part hereof, and this Guaranty Supplement shall be deemed to be a part of the Guaranty.   Exhibit A to Guaranty Agreement (Term Loan Agreement)     SECTION 5.                            This Guaranty Supplement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement.  Executed counterpart signature pages delivered by facsimile or as an attachment to electronic mail shall be deemed to be an original.         EXECUTED as of the date above first written.     [GUARANTOR]           By:     Print Name:     Print Title:       ACCEPTED BY:     By:     Print Name:     Print Title:        

Exhibit REFINANCING AMENDMENT NO. 1 dated as of June 10,2009 (this “Amendment”), relating to the Credit Agreement dated as of June 27, 2001, as amended and restated as of

Exhibit 10.2       TERM LOAN AGREEMENT Dated as of November 19, 2015 among CHP PARTNERS, LP, as Borrower, KEYBANK NATIONAL ASSOCIATION, as Administrative Agent, and       BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A., and SUNTRUST BANK, as Co-Syndication Agents FIFTH THIRD BANK, as Documentation Agent KEYBANC CAPITAL MARKETS, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, J.P. MORGAN SECURITIES LLC, and SUNTRUST ROBINSON HUMPHREY, INC., as Joint Lead Arrangers       TABLE OF CONTENTS             Page   ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS      1    1.01    Defined Terms      1    1.02    Other Interpretive Provisions      19    1.03    Accounting Terms      20    1.04    Rounding      20    1.05    Times of Day      20    ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS      21    2.01    Committed Loans      21    2.02    Borrowings, Conversions and Continuations of Committed Loans      21    2.03    Intentionally Deleted      22    2.04    Intentionally Deleted      22    2.05    Prepayments      22    2.06    Termination or Reduction of Commitments      22    2.07    Repayment of Loans      22    2.08    Interest      23    2.09    Intentionally Deleted      23    2.10    Computation of Interest and Fees      23    2.11    Evidence of Debt      23    2.12    Payments Generally; Agent’s Clawback      24    2.13    Sharing of Payments      25    2.14    Unencumbered Pool      25    2.15    Increase in Commitments      27    ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY      28    3.01    Taxes      28    3.02    Illegality      29    3.03    Inability to Determine Rates      29    3.04    Increased Costs      29    3.05    Compensation for Losses      30    3.06    Mitigation Obligations      30    3.07    Survival      30    ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS      31    4.01    Conditions of Initial Credit Extension      31    4.02    Conditions to all Credit Extensions      32    ARTICLE V. REPRESENTATIONS AND WARRANTIES      32    5.01    Existence, Qualification and Power      32      -i- TABLE OF CONTENTS (continued)             Page   5.02    Authorization; No Contravention      32    5.03    Governmental Authorization; Other Consents      32    5.04    Binding Effect      33    5.05    Financial Statements; No Material Adverse Effect      33    5.06    Litigation      33    5.07    No Default      33    5.08    Ownership of Property; Liens      33    5.09    Environmental Compliance      33    5.10    Insurance      34    5.11    Taxes      34    5.12    ERISA Compliance      34    5.13    Subsidiaries      34    5.14    Margin Regulations; Investment Company Act      34    5.15    Disclosure      35    5.16    Compliance with Laws      35    5.17    Taxpayer Identification Number      35    5.18    Intellectual Property; Licenses, Etc.      35    5.19    Unencumbered Pool      35    5.20    Solvency      35    5.21    OFAC      35    ARTICLE VI. AFFIRMATIVE COVENANTS      36    6.01    Financial Statements      36    6.02    Certificates; Other Information      36    6.03    Notices      37    6.04    Payment of Obligations      38    6.05    Preservation of Existence, Etc.      38    6.06    Maintenance of Properties      38    6.07    Maintenance of Insurance      38    6.08    Compliance with Laws      38    6.09    Books and Records      38    6.10    Inspection Rights      38    6.11    Use of Proceeds      39    6.12    Financial Covenants      39    6.13    Unencumbered Pool Records      39    6.14    Security Interests      39      -ii- TABLE OF CONTENTS (continued)             Page   6.15    Appraisals      40    6.16    Additional Guarantors      40    ARTICLE VII. NEGATIVE COVENANTS      40    7.01    Liens      40    7.02    Investments      41    7.03    Indebtedness      41    7.04    Fundamental Changes      42    7.05    Dispositions      42    7.06    Restricted Payments      42    7.07    Change in Nature of Business      43    7.08    Transactions with Affiliates      43    7.09    Burdensome Agreements      43    7.10    Use of Proceeds      43    7.11    Leasing Restrictions      43    7.12    OFAC      43    ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES      44    8.01    Events of Default      44    8.02    Remedies Upon Event of Default      45    8.03    Application of Funds      46    ARTICLE IX. ADMINISTRATIVE AGENT      46    9.01    Appointment and Authorization of Administrative Agent      46    9.02    Rights as a Lender      46    9.03    Exculpatory Provisions      47    9.04    Reliance by Administrative Agent      47    9.05    Delegation of Duties      47    9.06    Resignation by Agent      48    9.07    Non-Reliance on Agent and Other Lenders      48    9.08    No Other Duties, Etc.      48    9.09    Administrative Agent May File Proofs of Claim      48    9.10    Joint Lead Arranger, Documentation Agent and Syndication Agent      49    ARTICLE X. MISCELLANEOUS      49    10.01    Amendments, Etc.      49    10.02    Notices; Effectiveness; Electronic Communications      50    10.03    No Waiver; Cumulative Remedies      51    10.04    Expenses; Indemnity; Damage Waiver      51      -iii- TABLE OF CONTENTS (continued)             Page   10.05    Payments Set Aside      52    10.06    Successors and Assigns      53    10.07    Treatment of Certain Information; Confidentiality      55    10.08    Right of Setoff      56    10.09    Interest Rate Limitation      56    10.10         56    10.11    Survival of Representations and Warranties      56    10.12    Severability      56    10.13    Governing Law; Jurisdiction; Etc.      56    10.14    Waiver of Jury Trial      57    10.15    No Advisory or Fiduciary Responsibility      57    10.16    USA PATRIOT Act Notice      58    10.17    Time of the Essence      58    10.18    FINAL AGREEMENT      58      -iv- SCHEDULES 2.01      Commitments and Applicable Percentages 5.06      Litigation 5.09      Environmental Matters 5.13      Subsidiaries and Other Equity Investments 10.02      Administrative Agent’s Office, Certain Addresses for Notices EXHIBITS Form of A      Committed Loan Notice B      Term Note C      Compliance Certificate D      Assignment and Assumption E      Unencumbered Pool Certificate TERM LOAN AGREEMENT This TERM LOAN AGREEMENT (this “Agreement”) is entered into as of November 19, 2015, among CHP PARTNERS, LP, a Delaware limited partnership (“Borrower”), each lender from time to time party hereto (collectively, “Lenders” and individually, a “Lender”), and KEYBANK NATIONAL ASSOCIATION, a national banking association, as Administrative Agent. Borrower has requested that Lenders provide a term loan credit facility (whether one or more, the “Credit Facilities”), and Lenders are willing to do so on the terms and conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: “Additional Lender” has the meaning specified in Section 2.15. “Administrative Agent” or “Agent” means KeyBank National Association, a national banking association, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as Agent may from time to time notify Borrower and Lenders. supplied by Agent. “Adjusted Base Rate” means the sum of (a) the Base Rate plus (b) the Applicable Margin. “Adjusted LIBOR Rate” means the sum of (a) the LIBOR Rate plus (b) the Applicable Margin. “Adjusted Net Operating Income” means, for any Eligible Unencumbered Pool Property, the difference between (a) the Gross Revenues [provided, that, if the applicable Property is net leased, Gross Revenues shall be the lesser of (i) actual rent paid to the Owner or (ii) a reduced rent that complies with the EBITDAR Thresholds], and (b) the sum of (i) the operating expenses for the applicable Property for such period, (ii) the greater of (A) the actual management expense for the applicable period or (B) 5% of Gross Revenues for any Seniors Housing Property, or 3% of Gross Revenues for any MOB, and (iii) the applicable Capital Reserves. Adjusted Net Operating Income shall be calculated based upon a trailing six month basis (annualized). For any of the Eligible Unencumbered Pool Properties that have been owned for less than six months, such calculation shall be based on a trailing three month basis (annualized), building each month until a trailing six month basis is achieved. Any variation in the foregoing calculation must be approved by Required Lenders. “Aggregate Commitments” means the Commitments of all Lenders. “Agreement” means this Term Loan Agreement. “AL” means an assisted living facility. “ALZ” mean a memory care facility. “Anti-Terrorism Laws” means those laws and sanctions relating to terrorism or money laundering, including Executive Order No. 13224, the USA Patriot Act (Public Law 107-56), the Bank Secrecy Act (Public Law 91-508), the Trading with the Enemy Act (50 U.S.C. App. Section 1 et. seq.), the International Emergency   TERM LOAN AGREEMENT   Page 1 Economic Powers Act (50 U.S.C. Section 1701 et. seq.), and the sanction regulations promulgated pursuant thereto by the Office of Foreign Assets Control, as well as laws relating to prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957 (as any of the foregoing may from time to time be amended, renewed, extended or replaced). “Applicable Margin” means the Term Loan Margin. Lender to make Loans have been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. “Appraised Value” means any Project’s value, on a leased fee (if the Project is triple net leased to a third-party that is not affiliated with Borrower or CNL HP) or fee simple basis (if the Project is not triple net leased to a third-party that is not affiliated with Borrower or CNL HP), as applicable as determined by Agent in its sole but reasonable discretion, and as determined by an appraisal on an ‘as-is’ basis performed by an appraisal firm acceptable to the Agent. another. by Section 10.06(b)), and accepted by Agent, in substantially the form of Exhibit D or any other form approved by Agent. lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease. CNL HP and its consolidated Subsidiaries, if any, for the fiscal year ended December 31, 2014, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of CNL HP and its consolidated Subsidiaries, including the notes thereto. “Base Rate” means, for any day, a fluctuating interest rate per annum as shall be in effect from time to time which rate per annum shall at all times be equal to the greatest of: (a) the rate of interest established by KeyBank National Association, from time to time, as its “prime rate,” whether or not publicly announced, which interest rate may or may not be the lowest rate charged by it for commercial loans or other extensions of credit; (b) the Federal Funds Effective Rate in effect from time to time, determined one Business Day in arrears, plus 1/2 of 1% per annum; and (c) one percent (1.0%). “Borrower” has the meaning specified in the introductory paragraph hereto.   TERM LOAN AGREEMENT   Page 2 “Borrowing” means a Committed Borrowing. closed in, the state where Administrative Agent’s Office is located and, if such day relates to any LIBOR Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank LIBOR market. “Capital Reserves” means, to the extent Borrower or any Owner is responsible for a portion or all of the capital expenditures for a given Project, Capital Reserves is defined as an amount equal to $350 per unit for IL, AL & ALZ, $500 per bed for SNF, $0.50 per square foot for medical office and $0.75 per square foot for all other property types annually. For triple net or absolute net properties, no additional reserves shall apply. “Capitalization Rate” means 7.50% for Seniors Housing Properties and 7.00% for MOBs. administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued. “Change of Control” means, with respect to any Person, an event or series of events by which: of the Securities Exchange Act of 1934, but excluding any employee benefit plan capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 25% or more of the equity securities of such Person entitled to vote for members of the board of directors or equivalent governing body of such Person on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); board of directors or other equivalent governing body of such Person cease to be (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or (c) any individual(s) or entity(s) acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of such Person, or control over the equity securities of governing body of such Person on a fully-diluted basis (and taking into account all such securities that such individual(s) or entity(s) or group has the right to acquire pursuant to any option right) representing 25% or more of the combined voting power of such securities.   TERM LOAN AGREEMENT   Page 3 “CNL HP” means CNL Healthcare Properties, Inc., a Maryland corporation. “Commitment” means, as to each Lender, its obligation to make Committed Loans to Borrower pursuant to Section 2.01 in the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. Loans of the same Type and, in the case of LIBOR Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01. of LIBOR Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A. Exhibit C. “Consolidated EBITDA” means, with respect to any period, an amount equal to the EBITDA of CNL HP and its Subsidiaries (to the extent of CNL HP’s Equity Percentage in such Subsidiaries) for such period determined on a consolidated basis plus (without duplication) each such person’s Equity Percentage of EBITDA of its Unconsolidated Affiliates as hereafter provided. “Consolidated Fixed Charges” means, on any date of determination, the sum of (a) consolidated interest expense (both expensed and capitalized), plus (b) all of the principal due and payable and principal paid with respect to Total Indebtedness of CNL HP and its Subsidiaries (to the extent of CNL HP’s Equity Percentage in such Subsidiaries) during such period, other than any balloon, bullet or similar principal payment which repays such Total Indebtedness in full and any voluntary full or partial prepayments prior to stated maturity thereof, plus (c) all distributions on preferred stock paid during such period, plus (d) the principal payment on any capital lease obligations. Each such person’s equity percentage in the fixed charges referred to above of its Unconsolidated Affiliates shall be included (without duplication) in the determination of “Consolidated Fixed Charges”. “Consolidated Net Worth” means, with respect to any period, for CNL HP and its Subsidiaries (to the extent of CNL HP’s Equity Percentage in such Subsidiaries), an amount equal to (a) the sum of (i) shareholder’s equity as of such date, plus (ii) accumulated depreciation and amortization, less (b) the sum of (i) all intangible assets (excluding those related to value of leases from real estate acquisitions) plus (ii) intangible liabilities all as determined in accordance with GAAP. Each such person’s equity percentage in the amounts referred to above of its Unconsolidated Affiliates shall be included (without duplication) in the determination of “Consolidated Net Worth.” “Credit Extension” means a Borrowing.   TERM LOAN AGREEMENT   Page 4 “Credit Facilities” as such term is defined on Page 1. generally. Event of Default. “Default Rate” means when used with respect to Obligations an interest rate equal to the sum of (a) the Adjusted Base Rate plus (b) 2% per annum; provided, however, that with respect to a LIBOR Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Loan plus 2% per annum. “Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Committed Loans, within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding. “Defaulting Lender Waterfall” means any payment of principal, interest, fees or other amounts received by the Agent for the account of any Defaulting Lender (whether voluntary or mandatory, at maturity or otherwise) or received by the Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are funded by the Lenders pro rata in accordance with the Commitments under the Facility. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this “Defaulting Lender Waterfall” shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. “Development Property” means any property that is currently under construction or is a recently completed construction project that is not yet 85% leased. Notwithstanding the foregoing, a completed construction project may not be included as a “Development Property” for more than 12 months. After 12 months, the property will be valued on the basis of current “as-is” appraised value if included in the Unencumbered Pool.   TERM LOAN AGREEMENT   Page 5 associated therewith. “EBIT” means, for any Person, such Person’s net income, less income or plus loss from discontinued operations and extraordinary items, plus income taxes, plus interest expense. “EBITDA” means, with respect to any Person, for any period (without duplication): (a) net income (or loss) in accordance with GAAP, exclusive of the following (but only to the extent included in determination of such net income (loss)): (i) depreciation and amortization expense; (ii) interest expense; (iii) income tax expense; (iv) acquisition and closing costs (to include investment service fees not to exceed 1.85% of the purchase price of an asset and disposition fees not to exceed 1% of the disposition price of an asset) and extraordinary or non-recurring gains and losses (including, without limitation, gains and losses on the sale of assets and income and expense allocated to minority owners); and (v) other non-cash items to the extent not actually paid as a cash expense; plus (b) such Person’s pro rata share of EBITDA of its Unconsolidated Affiliates as provided below. In no event shall any of the adjustments be double-counted. With respect to consolidated Subsidiaries that are not wholly-owned Subsidiaries, EBITDA attributable to such entities shall only be included to the extent of CNL HP’s Equity Percentage in such Subsidiaries. For the avoidance of doubt, EBITDA for Unconsolidated Affiliates and Subsidiaries of CNL HP that are not wholly owned Subsidiaries shall include only CNL HP’s Equity Percentage of net income (or loss) from such Subsidiary of CNL HP that is not a wholly owned Subsidiary plus its Equity Percentage of (i) depreciation and amortization expense; (ii) interest expense; (iii) income tax expense; (iv) acquisition closing costs and extraordinary or non-recurring gains and losses (including, without limitation, gains and losses on the sale of assets) and income and expense allocated to minority owners; and (v) other non-cash items to the extent not actually paid as a cash expense. “EBITDAR” means, for any Person for any applicable period, such Person’s net income, less income or plus loss from discontinued operations and extraordinary items, plus income taxes, plus interest expense, plus depreciation and amortization, plus any leased asset payments during such period. “EBITDAR Thresholds” means, for each net leased Eligible Unencumbered Pool Property, the applicable tenant EBITDAR for such Property must be equal to or greater than: (i) 1.10x for Seniors Housing Properties; (ii) 1.85x for hospitals included as Other Healthcare Assets; and (iii) 1.35x for all Other Healthcare Assets excluding hospitals. “Eligible Assignee” means any Qualified Lender that meets the requirements to be an assignee under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)). “Eligible MOB Property” shall mean as of any date, any MOB which is an Eligible Unencumbered Property. “Eligible Other Healthcare Asset” shall mean as of any date, any Other Healthcare Asset which is an Eligible Unencumbered Property. “Eligible Seniors Housing Property” shall mean as of any date, each Seniors Housing Property which is an Eligible Unencumbered Property. “Eligible Unencumbered Property” shall mean any Property which: (i) is 100% owned by any Owner; (ii) is owned in fee simple, free and clear of any title exceptions or negative pledge other than those approved in writing by Agent (if not owned fee simple, the applicable Property may be subject to a “mortgageable” ground lease with not less than 30 years remaining on the term and with other standard mortgagee provisions acceptable to Agent in its sole discretion); (iii) is free from environmental concerns; (iv) has all appropriate licenses and certificates of occupancy per the applicable jurisdiction; (v) is located in the mainland United States; (vi) is an operating property free from development and/or material renovation; (vii) is (a) managed by the Borrower, any Affiliate of Borrower   TERM LOAN AGREEMENT   Page 6 or a qualified property management company reasonably acceptable to Agent, or (b) leased to a single tenant not in bankruptcy or more than sixty days past due on any payment of rent; and (viii) if a MOB, (a) is leased to a single tenant not in bankruptcy or, to the extent leased to multiple tenants, is not leased to a tenant or tenants in bankruptcy pursuant to a lease or leases covering in excess of 40% of the total rentable area of the applicable Property; and (b) is not leased to any tenant more than sixty days past due on any rent or, to the extent leased to multiple tenants, not leased to a tenant or tenants more than sixty days delinquent in payment of rent pursuant to a lease or leases covering in excess of 40% of the total rentable area of the Property. If a Property fails to meet any of the foregoing, it may be deemed to be an “Eligible Unencumbered Property” if such Property is otherwise acceptable to Required Lenders in their reasonable discretion. systems. penalties or indemnities), of Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. “Equity Percentage” means, with respect to any Person, the ownership interest of such Person in each of its Subsidiaries and Unconsolidated Affiliates, as applicable. under common control with Borrower within the meaning of Section 414(b) or withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.   TERM LOAN AGREEMENT   Page 7 “Excluded Taxes” means, with respect to Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of Borrower or any Guarantor hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the located or, in the case of any Lender, in which its applicable Lending Office is located, and (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which Borrower or any Guarantor is located. upward, if necessary, to a whole multiple of 1/100 of 1%) charged to KeyBank on such day on such transactions as determined by Agent. “FFO” as defined by NAREIT and adjusted for (a) non-cash/reoccurring write offs, (b) acquisitions costs and investment service fees (not to exceed 1.85% of purchase price), and (c) deferred financing costs. FFO from joint venture investments will be excluded and the amount of distributions received in cash from the joint ventures will be included. In no event shall any adjustments be double counted. “Fixed Charge Coverage Ratio” means the ratio of (a) Consolidated EBITDA, to (b) Consolidated Fixed Charges. Such ratio shall be calculated for the twelve (12) month period ending on the applicable date of determination. States. “GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied. “Gross Asset Value” means an amount equal to the sum of (a) the undepreciated book value (adjusted for any impairments) of all operating properties (including real estate related intangibles) owned by Borrower, CNL HP or any Subsidiary of Borrower or CNL HP consolidated for GAAP purposes, plus (b) the GAAP book value of all Development Properties owned by Borrower, CNL HP or any Subsidiary of Borrower or CNL HP (to the extent of the applicable Person’s Equity Percentage in such Subsidiary); plus (c) the GAAP book value of all land owned by Borrower, CNL HP or any Subsidiary of Borrower or CNL HP (to the extent of the applicable Person’s Equity Percentage in such Subsidiary); plus (d) the GAAP book value of all mortgage notes receivable owned by Borrower, CNL HP or any Subsidiary of in such Subsidiary), plus (e) the cash and cash equivalents of Borrower or CNL HP. Notwithstanding anything to the contrary, “Gross Asset Value” will include the pro rata share of Borrower or CNL HP of any of the items listed above for any Unconsolidated Affiliates. “Gross Revenue” means, for any applicable period, all revenues of the Pool Assets derived from the operation, use, leasing and occupancy of such Pool Assets; provided, however, that in no event shall Gross Revenues include (a) any loan proceeds, (b) proceeds or payments under insurance policies (except proceeds of business interruption insurance); (c) condemnation proceeds; (d) any security deposits received from tenants in the applicable Pool Assets, unless and until the same are applied to rent or other obligations in accordance with the tenant’s lease; or (e) any other extraordinary items, in Agent’s reasonable discretion.   TERM LOAN AGREEMENT   Page 8 “Guarantee” means, as to any Person, any (a) any obligation, contingent or (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, (b) any Lien on any assets of such Person securing any Indebtedness or other any holder of such Indebtedness to obtain any such Lien). The amount of any guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning. “Guarantors” means, collectively, CNL HP, each Material Subsidiary, each Owner and each Tenant, on a joint and several basis. “Guaranty” means that certain Guaranty Agreement, executed by the Guarantors, jointly and severally, in favor of the Lenders pursuant to which the Guarantors have guaranteed, among other things, all obligations of Borrower under the Loan Documents. “IL” means an independent living facility. “Incremental Amendment” has the meaning specified in Section 2.15. (a) all obligations of such Person for borrowed money (other than trade debt incurred in the ordinary course of business which is not more than one hundred eighty (180) days past due) and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; of business and, in each case, not past due for more than sixty (60) days after the date on which such trade account payable was created);   TERM LOAN AGREEMENT   Page 9 recourse; (f) capital leases and Synthetic Lease Obligations; unpaid dividends; and (h) all Guarantees of such Person in respect of any of the foregoing. made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease “Ineligible Unencumbered Property” has the meaning specified in Section 2.14. the last day of each month as well as the last day of each Interest Period applicable to such Loan and the Maturity Date; and (b) as to any Base Rate Loan, the last Business Day of each month and the Maturity Date. “Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date such LIBOR Rate Loan is disbursed or converted to or continued as a as selected by Borrower in its Committed Loan Notice; provided that: Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; (iii) any one month Interest Period that begins on a date other than as provided in (ii) shall end on the last Business Day of the calendar month in which such Interest Period commences; and (iv) no Interest Period shall extend beyond the Maturity Date. another   TERM LOAN AGREEMENT   Page 10 Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment. “KeyBank” means KeyBank National Association and its successors. “Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires. office or offices as a Lender may from time to time notify Borrower and Agent. “Leverage Ratio” means, as of any applicable date of determination, the ratio of (a) CNL HP’s consolidated Total Indebtedness to (b) the Gross Asset Value. “LIBOR Base Rate” has the meaning specified in the definition of LIBOR Rate. “LIBOR Rate” means for any Interest Period with respect to a LIBOR Rate Loan, a rate per annum determined by Agent pursuant to the following formula:     LIBOR Rate =    LIBOR Base Rate         1.00 – LIBOR Reserve Percentage    Where, “LIBOR Base Rate” means, for such Interest Period the rate per annum equal to the ICE Benchmark Administration LIBOR Rate (“ICE LIBOR”), as published by Reuters (or other commercially available source providing quotations of ICE LIBOR as designated by Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, provided, that in no event shall such rate be less than zero for each LIBOR Rate Loan that has not been identified by the Borrower in accordance with the terms of this Agreement as being subject to a Specified Swap Contract. If such rate is not available at such time for any reason, then the “LIBOR Base Rate” for such Interest Period shall be the rate per annum determined by Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Rate Loan being made, continued or converted by KeyBank and with a term equivalent to such Interest Period would be offered by KeyBank’s London Branch to major banks in the London interbank LIBOR market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period. “LIBOR Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Board of Governors of the Federal Reserve System of the United States for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The LIBOR Rate for each outstanding LIBOR Rate Loan shall be adjusted automatically as of the effective date of any change in the LIBOR Reserve Percentage.   TERM LOAN AGREEMENT   Page 11 “LIBOR Rate Loan” means a Committed Loan that bears interest at a rate based on the LIBOR Rate. “Loan” means an extension of credit by a Lender to Borrower under Article II in the form of a Committed Loan. “Loan Documents” means this Agreement, each Term Note and the Guaranty. “Loan Parties” means, collectively, Borrower, CNL HP, each other Guarantor and each other Person (other than Agent or any Lender) executing any Loan Document. For the avoidance of doubt, no Operator shall be deemed to be a “Loan Party” so long as such Operator is not a Guarantor. “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of (i) Borrower or CNL HP or (ii) Borrower, CNL HP and their Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party. “Material Subsidiary” means (i) any wholly-owned Subsidiary of Borrower or CNL HP which owns, directly or indirectly, equity in any Owner or Tenant and (ii) any wholly-owned Subsidiary of Borrower or CNL HP which accounts for 5% or more of Gross Asset Value and that is not prohibited from providing a guaranty under permanent debt agreements. “Maturity Date” means the Term Loan Maturity Date. “MOB” means medical office building. Section 4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions. “NAREIT” means the National Association of Real Estate Investment Trusts. covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. “Operator” means any lessee, manager or other operator of any Pool Asset. For the avoidance of doubt, any lessee under a residency agreement or a space lease shall not be deemed to be an “Operator”. “Other Healthcare Asset” shall mean any specialty hospital, acute care hospital, long-term acute care hospital, ambulatory surgery center, diagnostic center or SNF approved by Required Lenders.   TERM LOAN AGREEMENT   Page 12 “Other Taxes” means all present or future stamp, intangible or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this “Outstanding Amount” means with respect to Committed Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans occurring on such date. “Owner” shall mean the applicable Subsidiary of CNL HP that owns a Pool Asset. “Owner EBITDA” means, for any Owner for any applicable period, such Owner’s net amortization for such period. subject to Title IV of ERISA and is sponsored or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years. “Permanent Debt Availability Component” means the allocated amount of debt resulting in a 1.5 to 1.0 implied debt service coverage ratio when the Adjusted Net Operating Income for the Pool One Properties is divided by the annual debt service for such allocated amount of debt applying a thirty (30) year amortization period and an interest rate equal to the greater of (i) six and one-half percent (6.5%), and (ii) the yield per annum as of the date of such calculation on U.S. Treasury securities selected in good faith by Agent, maturing approximately ten (10) years after the date of calculation, plus three percent (3.00%). or other entity. Section 3(3) of ERISA), if any, established by Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate. “Pool Asset” means any Eligible Unencumbered Property that has been included in the Unencumbered Pool for all purposes hereunder. “Pool One Availability” shall be the lesser of (i) sixty percent (60%) of the Pool One Value, and (ii) the Permanent Debt Availability Component.   TERM LOAN AGREEMENT   Page 13 “Pool One Properties” shall refer to all Pool Assets that are not Pool Two Properties. “Pool One Value” means, with respect to all Pool One Properties, an aggregate amount equal to the sum of: (a) for each Seniors Housing Property, either (i) during the 18 month period commencing on the date such Property is acquired by the applicable Owner, the acquisition cost of such Property, or (ii) at all times thereafter, the quotient of such Property’s Adjusted Net Operating Income divided by the Capitalization Rate; plus (b) for each MOB, either (i) during the 18 month period commencing on the date such Property is acquired by the applicable Owner, the acquisition cost of such Property, or (ii) at all times thereafter, the quotient of such Property’s Adjusted Net Operating Income divided by the Capitalization Rate; plus (c) the as-is Appraised Value of each Other Healthcare Asset. Notwithstanding the foregoing, for those Pool Assets that are less than 80% occupied at the time of addition to the Unencumbered Pool, the Pool One Value for such Pool Assets is the amount equal to the sum of the following for the 18 month period commencing on the date of inclusion to the Unencumbered Pool: (x) the as-stabilized Appraised Value of each Seniors Housing Property; plus (y) the as-stabilized Appraised Value of each MOB. At the expiration of such 18 month period, the value of the applicable Pool Assets shall be calculated pursuant to clauses (a), (b) and (c) above. “Pool Two Availability” shall be defined as sixty percent (60%) of the Pool Two Value. “Pool Two Asset” shall refer to each Pool Asset that is a Seniors Housing Property that was recently built and received its certificate of occupancy no more than 18 months from the time of calculation. Notwithstanding the foregoing, the properties known as “Fieldstone”, “HRA Villages”, “Dogwood at Acworth”, and “Superior Residences of Panama City” shall be included as Pool Two Properties through June 30, 2016. The Borrower may designate any Pool Asset as a Pool One Property if such Property satisfies the criteria for a Pool Two Asset; provided, however, that once a Pool Asset is designated as a Pool One Property, such Property can no longer be a Pool Two Asset. “Pool Two Properties” shall refer to all Pool Two Assets. “Pool Two Value” means the aggregate Appraised Value of the Pool Two Properties determined on an “as-stabilized” basis. “Prior Credit Agreement” shall mean that certain Amended and Restated Credit Agreement, dated December 19, 2014, by and among Borrower, Agent and the lenders a party thereto from time to time, as amended. “Project” shall refer to each Seniors Housing Property, MOB or Other Healthcare Asset that is owned by an Owner and is a Pool Asset. “Property” shall refer to any Senior Housing Property, MOB or Other Healthcare Asset. “Public Lender” has the meaning specified in Section 6.02. “Qualified Lender” means (i) any commercial bank, savings bank, savings and loan association or similar financial institution which (a) has total assets of One Billion Dollars ($1,000,000,000) or more, (b) is “well capitalized” within the meaning of such term under the regulations promulgated under the auspices of the Federal Deposit Insurance Corporation Improvement Act of 1991, (c) in the sole judgment of the Agent, is engaged in the business of lending money and extending credit, and buying loans or participations in loans under credit facilities   TERM LOAN AGREEMENT   Page 14 substantially similar to those extended under this Agreement, and (d) in the sole judgment of the Agent, is operationally and procedurally able to meet the obligations of a Lender hereunder to the same degree as a commercial bank; (ii) any insurance company in the business of writing insurance which (a) has total assets of One Billion Dollars ($1,000,000,000) or more (b) is “best capitalized” within the meaning of such term under the applicable regulations of the National Association of Insurance Commissioners, and (c) meets the requirements set forth in subclauses (c) and (d) of clause (i) above; and (iii) any other financial institution having total assets of One Billion Dollars ($1,000,000,000) (including a mutual fund or other fund under management of any investment manager having under its management total assets of One Billion Dollars ($1,000,000,000) or more) which meets the requirement set forth in subclauses (c) and (d) of clause (i) above; provided that each Qualified Lender must (w) be organized under the Laws of the United States of America, any state thereof or the District of Columbia, or, if a commercial bank, be organized under the Laws of the United States of America, any state thereof or the District of Columbia, the Cayman Islands or any country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of such a country, (x) act under the Loan Documents through a branch, agency or funding office located in the United States of America, and (y) be exempt from withholding of tax on interest and deliver the documents related thereto pursuant to the Internal Revenue Code as in effect from time to time. “Rent” shall mean all rentals or other income paid to an Owner under the leases between any Owner and the tenant in connection with a Pool Asset for any applicable period, but specifically excluding any reserves, escrows, security deposits or other deposits, taxes, or reimbursements for amounts paid by an Owner on a tenant’s behalf. “Request for Credit Extension” means with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice. “Required Lenders” means, as of any date of determination, Lenders having in the aggregate at least fifty percent (50.0%) of the Total Outstandings. financial officer or treasurer of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. Interest of Borrower, CNL HP or any Subsidiary of Borrower or CNL HP (to the extent of the Equity Percentage of Borrower or CNL HP in such Subsidiary), or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest or on account of any return of capital to the stockholders, partners or members (or the equivalent Person thereof) of Borrower or CNL HP. “RIDEA” means the REIT Investment Diversification and Empowerment Act of 2007. “Sanctioned Entity” shall mean (i) an agency of the government of, (ii) an organization directly or indirectly controlled by, or (iii) a person resident, in a country that is subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/sanctions/index.html, or as otherwise published from time to time as such program may be applicable to such agency, organization or person.   TERM LOAN AGREEMENT   Page 15 “Sanctioned Person” shall mean a person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as otherwise published from time to time. “Secured Indebtedness” means, as of any date of determination, the aggregate principal amount of Total Indebtedness outstanding of Borrower or CNL HP or any Subsidiary of Borrower or CNL HP (to the extent of the applicable Person’s Equity Percentage in such Subsidiary), as evidenced by notes, bonds, debentures, or similar instruments and capital lease obligations that is secured by a lien. “Secured Recourse Indebtedness” means Secured Indebtedness that is recourse for payment to Borrower or CNL HP. For the avoidance of doubt, the indebtedness of Borrower under the Loan Documents shall not be deemed to be Secured Recourse Indebtedness for purpose hereof. “Seniors Housing Properties” shall mean all IL, AL and ALZ facilities. “SNF” means a skilled nursing facility. “Solvent” means, as to any Loan Party on a particular date, that any such Person (a) has capital sufficient to carry on its business and transactions and all business and transactions in which it is about to engage and is able to pay its debts as they mature, (b) has assets having a value, both at fair valuation and at present fair saleable value, greater than the amount required to pay its probable liabilities (including contingencies), and (c) does not believe that it will incur debts or liabilities beyond its ability to pay such debts or liabilities as they mature. “Specified Swap Contract” means any Swap Contract that is made or entered into at any time, or in effect at any time now or hereafter, whether as a result of an assignment or transfer or otherwise, in each case with respect to the Loan, between the Borrower and a Specified Swap Contract Provider. “Specified Swap Contract Provider” means any Lender, or Affiliate of a Lender, that is party to a Swap Contract at the time such Swap Contract is entered into. “Subordinated Liabilities” means liabilities subordinated to the Obligations in a manner acceptable to Agent in its sole discretion. CNL HP.   TERM LOAN AGREEMENT   Page 16 the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement. Lender). (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an thereto. “Tenant” shall mean the applicable wholly-owned Subsidiary of CNL HP that controls any Pool Asset pursuant to a lease with the applicable Owner. “Term Loan Availability Period” shall refer to the ninety (90) day period commencing on the date of this Agreement. “Term Loan Commitment Amount” shall mean $250,000,000.00. “Term Loan Commitment Increase” shall have the meaning given such term in Section 2.15. “Term Loan Facility” means that certain term loan facility established by the Lenders for the Borrower hereunder on or about the date hereof in the initial maximum aggregate amount of $250,000,000.00, subject to Borrower’s right to increase such facility as set forth in Section 2.15. “Term Loan Initial Maturity Date” means November 19, 2020. “Term Loan Maturity Date” means the date on which the Term Notes mature, whether by acceleration, lapse of time or otherwise; provided, that such date shall be the Term Loan Initial Maturity Date, unless earlier accelerated as permitted herein or in any other Loan Document. “Term Loan Margin” means the corresponding percentages per annum as set forth below based on the Leverage Ratio:   Pricing Level    Covenant Level   Applicable Margin        Leverage Ratio   LIBOR Margin     Base Rate Margin   I    < 40%     1.55 %      0.55 %  II    > 40%, but < 45%     1.70 %      0.70 %  III    > 45%, but < 50%     1.80 %      0.80 %  IV    > 50%, but < 55%     1.95 %      0.95 %  V    > 55%     2.15 %      1.15 %  Commencing the date hereof, the Term Loan Margin shall be Price Level III until the receipt by Agent of the first Compliance Certificate. The Term Loan Margin shall be determined and adjusted quarterly on the date (each a   TERM LOAN AGREEMENT   Page 17 “Calculation Date”) ten (10) Business Days after receipt by the Administrative Agent of the Compliance Certificate pursuant to Section 6.02 for the most recently ended fiscal quarter of the Borrower; provided that if the Borrower fails to provide the Compliance Certificate as required by Section 6.02 for the most recently ended fiscal quarter of the Borrower preceding the applicable Calculation Date, the Term Loan Margin from such Calculation Date shall be based on Pricing Level V until such time as an appropriate Compliance Certificate is provided, at which time the Pricing Level shall be determined by reference to the Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower preceding such Calculation Date. The Term Loan Margin shall be effective from one Calculation Date until the next Calculation Date. Any adjustment in the Term Loan Margin shall be applicable to all Loans then existing or subsequently made or issued. “Term Notes” means, collectively, each promissory note made by Borrower in favor of a Lender evidencing Loans made by such Lender evidencing the Term Loan Facility, substantially in the form of Exhibit B. “Total Indebtedness” means all of the following (without duplication): (a) all obligations of such person in respect of money borrowed (other than trade debt incurred in the ordinary course of business which is not more than one hundred eighty (180) days past due); (b) all obligations of such person, whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered; (c) all obligations of such person as a lessee or obligor under a capitalized lease; (d) all reimbursement obligations of such person under any letters of credit or acceptances (whether or not the same have been presented for payment); (e) all off-balance sheet obligations of such person; (f) all obligations of such person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment, in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied by the issuance of equity interests); (g) net obligations under any derivatives contract not entered into as a hedge against existing indebtedness, in an amount equal to the derivatives termination value thereof; (h) all indebtedness of other persons which such person has guaranteed or is otherwise recourse to such person (except for guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, violation of “special purpose entity” covenants, and other similar exceptions to recourse liability until a claim is made with respect thereto, and then shall be included only to the extent of the amount of such claim), including liability of a general partner in respect of liabilities of a partnership in which it is a general partner which would constitute indebtedness hereunder, any obligation to supply funds to or in any manner to invest directly or indirectly in a person, to maintain working capital or equity capital of a person or otherwise to maintain net worth, solvency or other financial condition of a person, to purchase indebtedness, or to assure the owner of indebtedness against loss, including, without limitation, through an agreement to purchase property, securities, goods, supplies or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner or otherwise; (i) all indebtedness of another person secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any lien on property or assets owned by such person, even though such person has not assumed or become liable for the payment of such indebtedness or other payment obligation; and (j) such person’s pro rata share of the indebtedness (based upon its equity percentage in such unconsolidated affiliates) of any unconsolidated affiliate of such person.   TERM LOAN AGREEMENT   Page 18 “Total Indebtedness” shall be adjusted to remove any impact of intangibles pursuant to FAS 141, as issued by the Financial Accounting Standards Board in June of 2001. “Total Outstandings” means the aggregate Outstanding Amount of all Loans. “Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a LIBOR Rate Loan. “Unconsolidated Affiliates” means, in respect of any Person, any other Person in which such Person holds an Equity Interest and (a) which Equity Interest is accounted for in the financial statements of such Person on an equal basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such first Person on the consolidated financial statements of such first Person, or (b) which is not a Subsidiary of such first Person. “Unencumbered Pool” means all Pool Assets as of any applicable date of determination. “Unencumbered Pool Certificate” means a certificate executed by Borrower in the form attached hereto as Exhibit E. “Unencumbered Pool Availability” means the sum of (i) the Pool One Availability, plus (ii) the Pool Two Availability. “Unencumbered Pool Value” means, with respect to all Pool Assets, the sum of (i) the Pool One Value plus the (ii) the Pool Two Value. “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year. “Unsecured Indebtedness” means, as of any date of determination, the aggregate amount of Total Indebtedness of Borrower or CNL HP or any Subsidiary of Borrower or CNL HP (to the extent of the applicable Person’s Equity Percentage in such Subsidiary) as of such date that is not Secured Indebtedness. “Unsecured Interest Expense” means, as of any date of determination, the greater of (i) the product of (a) the Unsecured Indebtedness multiplied by (b) six percent (6.00%), and (ii) the actual interest expense on the Unsecured Indebtedness for the applicable period. “Weighted Average Occupancy” means: (a) with respect to an AL, IL, or an ALZ that is single and/or single and dual occupancy, the number of occupied units divided by total units; (b) with respect to an AL, IL, or an ALZ that is dual occupancy only, the number of occupied beds divided by total beds; (c) with respect to a SNF, the number of occupied beds divided by total beds; and (d) for all other product types, the occupied square footage divided by the total square footage. The foregoing occupancy determination will be weighted for each applicable Property based upon such Property’s contribution to the aggregate Adjusted Net Operating Income for the Pool One Properties. Document: shall include the corresponding masculine, feminine   TERM LOAN AGREEMENT   Page 19 and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. including.” 1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Document, and Borrower or the Required Lenders shall so request, Agent, Lenders and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide to Agent and Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. consolidated financial statements of CNL HP and its Subsidiaries or to the determination of any amount for CNL HP and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that CNL HP is required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein. 1.04 Rounding. Any financial ratios required to be maintained by Borrower number). day shall be references to Eastern time (daylight or standard, as applicable).   TERM LOAN AGREEMENT   Page 20 Lender severally agrees to make loans prior to the Term Loan Maturity Date under the Term Loan Facility (each such loan, a “Committed Loan”) to Borrower from time to time during the Term Loan Availability Period, on any Business Day, in an aggregate amount not to exceed at any time outstanding the amount of such Committed Borrowing, (i) the Unsecured Indebtedness shall not exceed the Unencumbered Pool Availability, (ii) the aggregate principal amount of Loans made under the Term Loan Facility shall not exceed the Term Loan Commitment Amount, and (iii) the aggregate Outstanding Amount of the Committed Loans of any Lender shall not exceed such Lender’s Commitment. The initial amount of the Term Loan Facility (prior to any increase in accordance with Section 2.15) may be funded in up to two advances on or before the end of the Term Loan Availability Period. Amounts borrowed under the Term Loan Facility may be prepaid under Section 2.05, but may not be reborrowed hereunder. Committed Loans may be Base Rate Loans or LIBOR Rate Loans, as further provided herein. to the other, and each continuation of LIBOR Rate Loans shall be made upon Borrower’s irrevocable notice to Agent, which may be given by telephone. Each such notice must be received by Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of LIBOR Rate Loans or of any conversion of LIBOR Rate Loans to Base Rate Committed Loans, and (ii) one Business Day prior to the requested date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of Borrower. Each Borrowing of, conversion to or continuation of LIBOR Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of LIBOR Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (v) in the case of a LIBOR Rate Loan, whether such Loan is subject to a Specified Swap Agreement, and (vi) if applicable, the duration of the Interest Period with respect thereto. If Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Rate Loans. If Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Rate Loans in any such Committed Loan Notice, but fail to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. (b) Following receipt of a Committed Loan Notice, Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable provided by Borrower, Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to Agent in immediately available funds at Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), Agent shall make all funds so received available to Borrower in like funds as received by Agent either by (i) crediting the account of Borrower on the books of KeyBank with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Agent by Borrower. (c) Except as otherwise provided herein, a LIBOR Rate Loan may be continued or converted only on the last day of an Interest Period for such LIBOR Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as LIBOR Rate Loans without the consent of the Required Lenders,   TERM LOAN AGREEMENT   Page 21 and the Required Lenders may demand that any or all of the then outstanding LIBOR Rate Loans be converted immediately to Base Rate Committed Loans and Borrower agrees to pay all amounts due under Section 3.05 in accordance with the terms thereof due to any such conversion. (d) Agent shall promptly notify Borrower and Lenders of the interest rate applicable to any Interest Period for LIBOR Rate Loans upon determination of such interest rate. Loans as the same Type, there shall not be more than eight (8) Interest Periods in effect with respect to Committed Loans. 2.03 Intentionally Deleted. 2.04 Intentionally Deleted. 2.05 Prepayments. (a) Borrower may, upon notice to Agent, at any time or from premium or penalty; provided that (i) such notice must be received by Agent not later than 12:00 noon (A) three (3) Business Days prior to any date of prepayment of LIBOR Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of LIBOR Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and (iii) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if LIBOR Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a LIBOR Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the Committed Loans of Lenders in accordance with their respective Applicable Percentages. (b) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then in effect, Borrower shall immediately prepay Loans in an aggregate amount equal to such excess. (c) If for any reason the Unsecured Indebtedness at any time exceeds the Unencumbered Pool Availability, Borrower shall immediately prepay (i) a portion of the Unsecured Indebtedness in an aggregate amount equal to such excess, or (ii) Loans in an aggregate amount equal to the lesser of (A) such excess, or (B) the aggregate outstanding balance under the Term Notes. 2.06 Termination or Reduction of Commitments. Borrower may, upon notice to Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by Agent not later than 12:00 noon five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii) Borrower shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments. Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination. 2.07 Repayment of Loans. Borrower shall repay to Lenders, on the Term Loan Maturity Date, the aggregate principal amount of Committed Loans under the Term Loan Facility outstanding on such date.   TERM LOAN AGREEMENT   Page 22 2.08 Interest. (a) Subject to the provisions of subsection (b) below, (i) each LIBOR Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Adjusted LIBOR Rate for such Interest Period; and (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Adjusted Base Rate. regard to any applicable grace periods), whether at stated maturity, by (ii) If any amount (other than principal of any Loan) payable by Borrower under any Loan Document is not paid following the expiration of any applicable grace or cure period, whether at stated maturity, by acceleration or otherwise, then interest from the date such payment was due (without regard to any applicable grace or cure period) at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. exists, Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times 2.09 Intentionally Deleted. 2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by KeyBank’s “prime rate” shall be days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.07, bear interest for one day. Each determination by Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. 2.11 Evidence of Debt. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by Agent in the ordinary course of business. The accounts or records maintained by Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by Lenders to Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of Agent in respect of such matters, the accounts and records of Agent shall control in the absence of manifest error. Upon the request of any Lender made through Agent, Borrower shall execute and deliver to such Lender (through Agent) a Term Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Term Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.   TERM LOAN AGREEMENT   Page 23 2.12 Payments Generally; Agent’s Clawback. (a) General. All payments to be made by Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon on the date specified herein. Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by Agent after 12:00 noon Cleveland, Ohio time shall be deemed received on the next succeeding Business Day and any by Borrower shall come due on a day other than a Business Day, payment shall be reflected in computing interest or fees, as the case may be. Any and all amounts due hereunder or under the other Loan Documents which remain unpaid more than ten (10) days after the date said amount was due and payable shall incur a fee of four percent (4%) of said amount, which payment shall be in addition to all of Lenders’ other rights and remedies under the Loan Documents, provided that no late charge shall apply to the final payment of principal on the Maturity Date. (b) Funding by Lenders; Presumption by Agent. Unless Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of LIBOR Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 p.m. on the date of such Committed Borrowing) that such Lender will not make available to Agent such Lender’s share of such Committed Borrowing, Agent may assume that such Lender has made such share available on upon such assumption, make available to Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to Agent, then the applicable Lender and Borrower severally agree to pay to Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to Borrower to but excluding the date of payment to Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Agent in connection with the foregoing and (B) in the case of a payment to be made by Borrower, the interest rate applicable to Base Rate Loans. If Borrower and such Lender shall pay such interest to Agent for the same or an overlapping period, Agent shall promptly remit to Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its share of the applicable Committed Borrowing to Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by Borrower shall be without prejudice to any claim Borrower may have against a Lender that shall have failed to make such payment to Agent. (c) Payments by Borrower; Presumptions by Agent. Unless Agent shall have received notice from Borrower prior to the date on which any payment is due to Agent for the account of the Lenders that Borrower will not make such payment, Agent may assume that Borrower have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to Lenders the amount due. In such event, if Borrower have not in fact made such payment, then each of Lenders severally agrees to repay to Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with distributed to it to but excluding the date of payment to Agent, at the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation. A notice of Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error. (d) Failure to Satisfy Conditions Precedent. If any Lender makes available to Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Borrower by Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, (e) Obligations of Lenders Several. The obligations of Lenders hereunder to make Committed Loans and to make payments under Section 10.04(c) are several and not joint. The failure of any Lender   TERM LOAN AGREEMENT   Page 24 to make any Committed Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, purchase its participation or to make its payment under Section 10.04(c). (f) Funding Source. Nothing herein shall be deemed to obligate any Lender to 2.13 Sharing of Payments. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amounts owing them, provided that: payment made by Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans to any assignee or participant, other than to Borrower, CNL HP or any Subsidiary thereof (as to which the provisions of this Section shall apply). 2.14 Unencumbered Pool. (a) Covenants. With respect to the Unencumbered Pool, so long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, Borrower shall, and shall cause each Owner to: (i) Cause the Unencumbered Pool to include not less than twenty-five (25) Eligible Unencumbered Properties with a minimum Unencumbered Pool Value of $400,000,000.00; (ii) Cause the portion of the Unencumbered Pool Value attributable to Eligible Seniors Housing Properties and Eligible MOB Properties to be not less than seventy-five percent (75%); (iii) Cause not more than twenty-five percent (25%) of the Unencumbered Pool Value to be derived from any one metropolitan statistical area; (iv) Cause not more than twenty percent (20%) of the Unencumbered Pool Value to be derived from any one Operator; (v) Cause no single Pool Asset to exceed fifteen percent (15%) of the Unencumbered Pool Value excluding the Pool Asset commonly known as “Legacy Village” which may equal up to twenty percent (20%) of the Unencumbered Pool Value;   TERM LOAN AGREEMENT   Page 25 (vi) Maintain the weighted average (based upon each asset’s Unencumbered Pool Value) remaining lease term for all Eligible MOB Properties, on an aggregate basis, at a level of least two years; (vii) Pool Two Properties shall not exceed seven and one-half percent (7.5%) of the Unencumbered Pool Value; and (viii) The Weighted Average Occupancy of the Pool One Properties must equal or exceed eighty-five percent (85%) at all times. If, as of the end of any calendar quarter, Borrower fails to meet any of the foregoing covenants, Borrower may cure any such default by either (A) removing one or more Pool Assets from the Unencumbered Pool (each such property an “Ineligible Unencumbered Property”), (B) making a principal payment in accordance with Section 2.05 in an amount attributable to the applicable failure, or (C) to the extent the failure is related to clauses (ii), (iii), (iv) or (v), reducing the Unencumbered Pool Value by an amount attributable to the applicable failure, and, in either (A), (B) or (C), recalculating the covenants and the Unencumbered Pool Value. Such recalculation and payment shall be made within the time required for delivery of the then due Unencumbered Pool Certificate as set forth in Section 6.02. (b) Additions of Eligible Unencumbered Properties to the Unencumbered Pool. Provided that no Default or Event of Default exists, Borrower shall have the right, subject to the satisfaction of the conditions set forth below and upon notice to Agent, to request the addition of an Eligible Unencumbered Property to the Unencumbered Pool. Any request shall be subject to the following: (i) Delivery by Borrower to Agent of such request in writing at least thirty (30) days (or such other period approved by Agent) prior to the requested date of applicable addition; (ii) Delivery by Borrower to Agent of a pro forma Compliance Certificate and Unencumbered Pool Certificate prepared using the financial statements of Borrower most recently provided or required to be provided to Agent under Section 6.01 evidencing compliance in all material respects with all covenants and conditions related to the Unencumbered Pool after giving effect to the applicable addition and shall certify that after giving effect to such addition, no Default or Event of Default shall exist; (iii) The Borrower shall, as a condition to such Eligible Unencumbered Property being included as a Pool Asset, cause each applicable Material Subsidiary to become a Guarantor hereunder in accordance with Section 6.16; and (iv) Borrower shall pay all reasonable costs and expenses of Agent and its counsel in connection with the applicable addition. (c) Removal. Borrower shall have the right upon notice to Agent to remove a Pool Asset from the Unencumbered Pool. Any request shall be subject to the following: (i) Delivery by Borrower to Agent of such request in writing at least twenty (20) days (or such shorter period approved by Agent) prior to the requested date of release; (ii) Delivery by Borrower to Agent of a pro forma Compliance and Unencumbered Certificate prepared using the financial statements of Borrower most recently provided or required to be provided to Agent under Section 6.01 evidencing compliance in all material respects with all covenants and conditions related to the Unencumbered Pool after giving effect to the applicable release and shall certify that after giving effect to such release, no Default or Event of Default shall exist; and (iii) Borrower shall pay all reasonable costs and expenses of Agent and its counsel in connection with the applicable release.   TERM LOAN AGREEMENT   Page 26 Upon the release of any Pool Asset, Agent on behalf of the Lenders shall release the applicable Owner or Tenant of such Pool Asset and any other Material Subsidiary, which (after giving effect to the release of such Owner or Tenant) owns no interest in any other Owner or Tenant of a Pool Asset, from their respective Guaranty(s) and the obligations thereunder as well as any other Loan Documents to which such Subsidiary or such Material Subsidiary is a party to. (d) Ineligible Unencumbered Properties. If, at any time, a Pool Asset becomes an Ineligible Unencumbered Property, Borrower shall promptly submit an updated Compliance Certificate and Unencumbered Certificate after having given effect to the removal of the applicable Ineligible Unencumbered Property from the Unencumbered Pool and shall make any payments under Section 2.05 required in connection with such recalculation at the time the applicable Unencumbered Certificate is delivered. (a) At any time prior to the Business Day immediately preceding the Term Loan Maturity Date, the Borrower shall have the right, in consultation and coordination with the Agent, to request (by written notice to the Agent), one or more increases in the amount of the Term Loan Commitments (each such increase, a “Term Loan Commitment Increase”), provided that; (i) at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below and the date that such Term Loan Commitment Increase becomes effective, no Default or Event of Default shall have occurred and be continuing or would result therefrom; (ii) all representations and warranties contained in this Agreement shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the date that such Term Loan Commitment Increase becomes effective (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on such date, except that any representation and warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date; (iii) the Borrower shall be in pro forma compliance with the covenants in Section 6.12; (iv) each Term Loan Commitment Increase shall be in a combined minimum principal amount of $5,000,000; (v) the aggregate amount of all Term Loan Commitment Increases made available pursuant to this Section 2.15 shall not exceed $100,000,000; and (vi) the Borrower shall have delivered to the Agent a certificate executed by a Responsible Officer of the Borrower, certifying compliance with the requirements of each of the preceding clauses (i) - (v). (b) Each notice from Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Term Loan Commitment Increase. (c) Term Loan Commitment Increases may be provided, by any existing Lender or by any other Eligible Assignee (any such other bank or other financial institution being called an “Additional Lender”), provided that no existing Lender shall be obligated to provide any Term Loan Commitment Increase, unless it so agrees in its sole discretion. Commitments in respect of Term Loan Commitment Increases shall become Commitments (or in the case to be provided by an existing Lender, an increase in such Lender’s applicable Commitment) under this Agreement pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Borrower, to effect the provisions of this Section 2.15.   TERM LOAN AGREEMENT   Page 27 (d) The effectiveness of any Incremental Amendment shall be subject to (i) the delivery of an acknowledgement in form and substance reasonably satisfactory to the Agent and executed by each Guarantor acknowledging that such Term Loan Commitment Increases shall constitute (and be included in the definition of) “Obligations” under each Guaranty of such Guarantor and (ii) the delivery by the Credit Parties of such technical amendments, modifications and/or supplements to the respective Loan Documents as are reasonably requested by the Administrative Agent to ensure that such Term Loan Commitment Increases (and related Obligations) are entitled to the benefits of the relevant Loan Documents. 3.01 Taxes. (a) Payments Free of Taxes. Any and all payments by Borrower to or on account of any obligation of Borrower hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if Borrower shall be required by any applicable law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section), Agent or any applicable Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make such deductions, and (iii) Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law. (b) Payment of Other Taxes by Borrower. Without limiting the provisions of subsection (a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law; provided, however, Borrower shall have the right to contest any Other Taxes in good faith. (c) Indemnification by Borrower. Borrower shall indemnify Agent and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by Agent, such Lender and any penalties, interest and reasonable expenses arising Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. Indemnified Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shall deliver to Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Agent. (e) Status of Lenders. Any Lender, if requested by Borrower or Agent, shall deliver such documentation prescribed by applicable law or reasonably requested by Borrower or Agent as will enable Borrower or Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. (f) Treatment of Certain Refunds. If Agent or any Lender determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which Borrower have paid additional amounts pursuant to this Section, it shall pay to Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that Borrower, upon the request of Agent or such Lender, agrees to repay the amount paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to Agent or such Lender in the event Agent or such Lender is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to Borrower or any other Person.   TERM LOAN AGREEMENT   Page 28 3.02 Illegality. If any Lender reasonably determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund LIBOR Rate Loans, or to determine or charge interest rates based upon the LIBOR Rate, London interbank market, then, on notice thereof by such Lender to Borrower through Agent, any obligation of such Lender to make or continue LIBOR Rate Loans or to convert Base Rate Committed Loans to LIBOR Rate Loans shall be suspended until such Lender notifies Agent and Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, Borrower shall, upon demand from such Lender (with a copy to Agent), prepay or, if all LIBOR Rate Loans can be converted to Base Rate Loans and Borrower so elects, convert all LIBOR Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Rate Loans. Upon any such prepayment or conversion, Borrower shall also pay accrued interest on the amount so prepaid or converted and all amounts due under Section 3.05 in accordance with the terms thereof due to such prepayment or conversion. 3.03 Inability to Determine Rates. If Agent determines in connection with any request for a LIBOR Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of such LIBOR Rate Loan, (b) adequate and reasonable means do not exist for determining the LIBOR Base Rate for any requested Interest Period with respect to a proposed LIBOR Rate Loan, or (c) the LIBOR Base Rate for any requested Interest Period with respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, Agent will promptly so notify Borrower and each Lender. Thereafter, the obligation of Lenders to make or maintain LIBOR Rate Loans shall be suspended until Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of LIBOR Rate Loans or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein. 3.04 Increased Costs. (a) Increased Costs Generally. If any Change in Law shall: (except any reserve requirement reflected in the LIBOR Rate); (ii) subject any Lender to any tax of any kind whatsoever with respect to this Agreement or any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender); or (iii) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Rate Loans made by such Lender; Lender of making or maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered. (b) Capital Requirements. If any Lender reasonably determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the   TERM LOAN AGREEMENT   Page 29 policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered. (c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof. (d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof). 3.05 Compensation for Losses. Upon demand of any Lender (with a copy to Agent) from time to time, Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of: otherwise); or (b) any failure by Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by Borrower; including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. Borrower shall also pay any customary and reasonable administrative fees charged by such Lender in connection with the foregoing. For purposes of calculating amounts payable by Borrower to Lenders under this Section 3.05, each Lender shall be deemed to have funded each LIBOR Rate Loan made by it at the LIBOR Base Rate used in determining the LIBOR Rate for such Loan by a matching deposit or other borrowing in the London interbank Eurodollar market for a comparable amount and for a comparable period, whether or not such LIBOR Rate Loan was in fact so funded. 3.06 Mitigation Obligations. If any Lender requests compensation under Section 3.04, or Borrower are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. 3.07 Survival. All of Borrower’s obligations under this Article III shall Obligations hereunder.   TERM LOAN AGREEMENT   Page 30 4.01 Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) Agent’s receipt of the following, each of which shall be originals or electronically (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders: (i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to Agent, each Lender and each Loan Party; (ii) the Term Notes; and/or other certificates of Responsible Officers of each Loan Party as Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) such documents and certifications as Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent Adverse Effect; (v) a favorable opinion of counsel to the Loan Parties reasonably acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning the Loan Parties and the Loan Documents in form and substance reasonably satisfactory to Agent; (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vii) a certificate signed by a Responsible Officer of Borrower certifying (viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; (ix) a duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of Borrower; and (x) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require. (b) Any fees required to be paid on or before the Closing Date shall have been paid. (c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).   TERM LOAN AGREEMENT   Page 31 Without limiting the generality of the provisions of the last sentence of Section 9.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have received objection thereto. any Request for Credit Extension is subject to the following conditions precedent: (a) The representations and warranties of Borrower and each other Loan Party shall be true and correct, in all material respects, on and as of the date of such Credit Extension, 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, as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01. (c) Agent shall have received a Request for Credit Extension in accordance with the requirements hereof. (d) Agent shall have received, in form and substance reasonably satisfactory to it, such other assurances, certificates, documents or consents related to the foregoing as Agent or the Required Lenders reasonably may require. Each Request for Credit Extension submitted by Borrower shall be deemed to be a Extension. Borrower represents and warrants to Agent and the Lenders that: 5.01 Existence, Qualification and Power. Each Loan Party (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its requires such qualification or license; except in each case referred to in clause (b)(i), or (c), to the extent that failure to do so could not reasonably or (c) violate any Law. against, any Loan Party of this Agreement or any other Loan Document.   TERM LOAN AGREEMENT   Page 32 thereto in accordance with its terms. 5.05 Financial Statements; No Material Adverse Effect. expressly noted therein; (ii) fairly present the financial condition of CNL HP and its consolidated Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of CNL HP and its consolidated Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness. (b) The unaudited consolidated balance sheets of CNL HP and its consolidated Subsidiaries dated June 30, 2015, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently noted therein, and (ii) fairly present the financial condition of each Borrower (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments. 5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower, CNL HP or any Subsidiaries thereof or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect, and there has been no adverse change in the status, or financial effect on any Loan Party, of the matters described on Schedule 5.06. 5.07 No Default. No Loan Party is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document. 5.08 Ownership of Property; Liens. Borrower, CNL HP and each Owner has good record and marketable title in fee simple to, or valid leasehold interests in, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of each Borrower and each Owner is subject to no Liens, other than Liens permitted by Section 7.01. 5.09 Environmental Compliance. Borrower, CNL HP and each Owner conduct in the and as a result thereof Borrower has reasonably concluded that, except as specifically disclosed in Schedule 5.09, such Environmental Laws and claims Material Adverse Effect.   TERM LOAN AGREEMENT   Page 33 5.10 Insurance. The properties of Borrower, CNL HP and each Owner are insured with financially sound and reputable insurance companies not Affiliates of Borrower or CNL HP, in such amounts (after giving effect to any self-insurance compatible with the following standards), with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where Borrower, CNL HP or the applicable Owner operates. 5.11 Taxes. Borrower, CNL HP and each Owner has filed all Federal, state and other material tax returns and reports required to be filed, and has paid all governmental charges levied or imposed upon it or its properties, income or reserves have been provided in accordance with GAAP. There is no proposed tax assessment against Borrower, CNL HP or any Owner that would, if made, have a Material Adverse Effect. 5.12 ERISA Compliance. (a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification. Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan. (b) There are no pending or, to the best knowledge of Borrower, threatened respect to any Plan that could be reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither Borrower nor CNL HP or any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no Borrower nor CNL HP or any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA. 5.13 Subsidiaries. As of the Closing Date, neither Borrower nor CNL HP has any Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity Interests of Borrower or CNL HP in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned, directly or indirectly, by Borrower or CNL HP in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens. Neither Borrower nor CNL HP has any equity investments in any other corporation or entity other than those specifically disclosed in Part(b) of Schedule 5.13. All of the outstanding Equity Interests in Borrower or CNL HP have been validly issued and are fully paid and nonassessable. 5.14 Margin Regulations; Investment Company Act. (a) Neither Borrower nor CNL HP is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. (b) None of the Borrower, CNL HP, any Person Controlling Borrower, CNL HP or any Subsidiary of Borrower or CNL HP is, or is required to be registered as, an “investment company” under the Investment Company Act of 1940.   TERM LOAN AGREEMENT   Page 34 5.15 Disclosure. Borrower has disclosed to Agent and Lenders all agreements, instruments and corporate or other restrictions to which it or any Loan Party is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any circumstances under which they were made, not misleading; provided that, with respect to projected financial information, Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time. 5.16 Compliance with Laws. Each Loan Party is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 5.17 Taxpayer Identification Number. Borrower’s true and correct U.S. taxpayer identification number is set forth on Schedule 10.02. 5.18 Intellectual Property; Licenses, Etc.. Borrower, CNL HP and each Owner own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person. To the best knowledge of Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by Borrower, CNL HP or any Owner infringes upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. 5.19 Unencumbered Pool. Each Owner owns the applicable Pool Asset, free and clear of any and all Liens in favor of third parties (other than Liens otherwise permitted hereunder). 5.20 Solvency. As of the Closing Date, each of the Loan Parties will be Solvent. 5.21 OFAC. None of the Loan Parties: (i) is a Sanctioned Person, (ii) has any of its assets in Sanctioned Entities, or (iii) derives any of its operating income from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. The proceeds of any Loan will not be used and have not been used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity. No Loan Party is violation of any Anti-Terrorism Law or engaged in nor has it conspired to engage Anti-Terrorism Law. No Loan Party (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Sanctioned Persons or Sanctioned Entities, or (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order No. 13224.   TERM LOAN AGREEMENT   Page 35 Obligation hereunder shall remain unpaid or unsatisfied, Borrower and CNL HP shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each other Loan Party to: 6.01 Financial Statements. Deliver to Agent a sufficient number of copies for delivery by Agent to each Lender, in form and detail satisfactory to Agent and the Required Lenders: fiscal year of Borrower, the consolidated annual financial statements of CNL HP as of the end of such fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; and of the first three quarters of each fiscal year of Borrower, the consolidated quarterly financial statements of CNL HP, all in reasonable detail and prepared in accordance with GAAP, unaudited and certified by an authorized officer of Borrower; and (c) within 45 days of the end of each quarter, internally prepared individual financial statements, occupancy reports, and payor mix statistics of all Pool Assets; and (d) prior to December 31 of each year, annual forward-looking budgets for the Borrower and the Pool Assets for next succeeding year; and (e) federal tax returns of Borrower and CNL HP as soon as practical but in no event later than 30 days after the filing thereof; and (f) property cost reports and Department of Health surveys as requested. 6.02 Certificates; Other Information. Deliver to Agent a sufficient number of copies for delivery by Agent to each Lender, in form and detail satisfactory to Agent and the Required Lenders: Section 6.01(a), a certificate of its independent certified public accountants necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event; (b) concurrently with the delivery of the financial statements referenced in Section 6.01(a) and Section 6.01(b) above, a duly completed Unencumbered Pool Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of Borrower; (c) concurrently with the delivery of the financial statements referenced in Section 6.01(a) and Section 6.01(b) above, a duly completed Compliance Certificate signed by Responsible Officer of Borrower; (d) promptly after any request by Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of Borrower and CNL HP by independent accountants in connection with the accounts or books of Borrower, CNL HP or any Subsidiary of Borrower or CNL HP, or any audit of any of them; (e) promptly after the same are available, copies of each annual report, proxy of Borrower and CNL HP, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or CNL HP may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to Agent pursuant hereto; (f) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;   TERM LOAN AGREEMENT   Page 36 (g) promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party, copies of each notice or other correspondence received from the Securities and Exchange Commission (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party; and (h) promptly, such additional information regarding the business, financial or corporate affairs of Borrower or CNL HP, or compliance with the terms of the Loan Documents, as Agent or any Lender may from time to time reasonably request. Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Borrower post such documents, or provide a link thereto on Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Agent have access (whether a commercial, third-party website or whether sponsored by Agent); provided that: (i) Borrower shall deliver paper copies of such documents to Agent or any Lender that requests Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by Agent or such Lender and (ii) Borrower shall notify Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Borrower hereby acknowledges that (a) Agent will make available to Lenders materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Borrower, CNL HP or Affiliates thereof or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Borrower shall be deemed to have authorized Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor. 6.03 Notices. Promptly notify Agent and each Lender: (a) of the occurrence of any Default; (b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of Borrower or any other Loan Party; (ii) any dispute, litigation, investigation, proceeding or suspension between Borrower or any other Loan Party and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting Borrower or any other Loan Party, including pursuant to any applicable Environmental Laws, in each instance which resulted or could reasonably be expected to result in a Material Adverse Effect; (c) of the occurrence of any ERISA Event; and (d) of any material change in accounting policies or financial reporting practices by Borrower, CNL HP or any Subsidiary of Borrower or CNL HP.   TERM LOAN AGREEMENT   Page 37 Responsible Officer of Borrower setting forth details of the occurrence referred to therein and stating what action Borrower have taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. are being maintained by Borrower, CNL HP or such Owner; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness. 6.05 Preservation of Existence, Etc.. (a) Preserve, renew and maintain in full jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect. insurance companies not Affiliates of Borrower, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance compatible with the following standards) as are customarily carried under similar circumstances by such other Persons and providing for not less than 30 days’ prior notice to Agent of termination, lapse or cancellation of such insurance. 6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, write, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. assets and business of Borrower, CNL HP or such Owner, as the case may be; and jurisdiction over Borrower, CNL HP or such Owner, as the case may be. Borrower shall maintain at all times books and records pertaining to the Unencumbered Pool in such detail, form and scope as Agent or any Lender shall reasonably require. Agent and each Lender to visit and inspect any of its properties, to examine its therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to Borrower; provided, however,   TERM LOAN AGREEMENT   Page 38 that any such inspection shall not interfere with the use and occupancy of the applicable property and when an Event of Default exists Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of Borrower at any time during normal business hours and without advance notice. 6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate purposes not in contravention of any Law (including anti-corruption Laws and sanctions) or of any Loan Document. 6.12 Financial Covenants. (a) Maximum Leverage. Maintain at all times the Leverage Ratio at a level less than or equal to 60%. (b) Minimum Fixed Charge Coverage Ratio. Maintain at all times the Fixed Charge Coverage Ratio at a level equal to or in excess of 1.50 to 1.0. (c) Minimum Consolidated Net Worth. Not permit Consolidated Net Worth to be less than $700,000,000.00 plus 80% of net equity capital proceeds raised after the date of the Prior Credit Agreement. (d) Maximum Cash Distribution Ratio. Not make cash distributions (net of any distributions through the dividend reinvestment policy), as determined on an aggregate rolling four fiscal quarter basis, in excess of (i) so long as no Event of Default exists, the greater of (A) 95% of FFO or (B) the amount required to be paid out to maintain REIT status, or (ii) during the existence of an Event of Default, the amount required to be paid out to maintain REIT status. (e) Maximum Secured Indebtedness. Maintain the ratio of Secured Indebtedness to Gross Asset Value at a level equal to or less than: (i) 45% from July 1, 2015 through December 31, 2015; and (ii) 40% at all times thereafter. (f) Maximum Secured Recourse Indebtedness. Maintain the ratio of Secured Recourse Indebtedness to Gross Asset Value at a level equal to or less than 15%. (g) Maximum Other Investments. Maintain the ratio of: (i) investments in unimproved land to Gross Asset Value at a level equal to or less than 5%; (ii) investments in mortgage notes to Gross Asset Value at a level equal to or less than 10%; and (iii) investments in unimproved land, mortgage notes, Development Properties and joint ventures in the aggregate to Gross Asset Value at a level equal to or less than 25%. (h) Unsecured Interest Coverage. Maintain the ratio of the Adjusted Net Operating Income for all Pool Assets to Unsecured Interest Expense at a level equal to or excess of 1.75 to 1.0. Notwithstanding anything to the contrary, to the extent that Borrower or any of the Guarantors enters into (or amends) any Unsecured Indebtedness subject to a more restrictive version of any of the forgoing covenants, then the applicable covenant as set forth herein shall be deemed amended to such more restrictive level as of the effective date of the applicable financing and shall remain in effect until such Unsecured Indebtedness is paid in full. 6.13 Unencumbered Pool Records. To execute and deliver promptly, and to cause each other Loan Party to execute and deliver promptly, to Agent, from time to time, solely for Agent’s convenience in maintaining a record of the Unencumbered Pool, such written statements and schedules as Agent may reasonably require designating, identifying or describing the Pool Assets. 6.14 Security Interests. To, and to cause each other Loan Party to, (a) defend the Pool Assets against all claims and demands of all Persons at any time claiming the same or any interest therein, and (b) do whatever Agent may reasonably request, from time to time, to effect the purposes of this Agreement   TERM LOAN AGREEMENT   Page 39 6.15 Appraisals. Agent and/or the Required Lenders shall have the right to obtain a new or updated Appraisal of any Pool Asset from time to time. Borrower shall cooperate with Agent in this regard. If the Appraisal is obtained to comply with any applicable law or regulatory requirement, or bank policy promulgated to comply therewith, or an Event of Default exists, Borrower shall pay for any such Appraisal upon Agent’s request. 6.16 Additional Guarantors. Notify Agent at the time that any Person becomes a Material Subsidiary, and promptly thereafter (and in any event within 30 days), cause such Person to (a) become a Guarantor by executing and delivering to Agent a counterpart of the Guaranty or such other document as Agent shall deem appropriate for such purpose, and (b) deliver to Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (a)), all in form, content and scope reasonably satisfactory to Agent. Obligation hereunder shall remain unpaid or unsatisfied, neither Borrower nor CNL HP shall, nor shall it permit any of its Subsidiary to, directly or indirectly: than the following: (a) Liens granted by any Owner existing on the date hereof and not securing Indebtedness; (b) Liens for taxes not yet due or which are being contested in good faith and accordance with GAAP; (c) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other (d) pledges or deposits in the ordinary course of business in connection with legislation, other than any Lien imposed by ERISA; (e) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, (f) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person; (g) Liens securing judgments for the payment of money not constituting an Event (h) Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition; and (i) With respect to any Subsidiary that is not an Owner, Tenant or Material Subsidiary or the assets of any such Subsidiary that is not an Owner, Tenant or Material Subsidiary, Liens which individually or in the aggregate would not   TERM LOAN AGREEMENT   Page 40 (a) Investments held by Borrower, CNL HP or any Subsidiary in the form of cash equivalents or short-term marketable debt securities; (b) Investments of Borrower or CNL HP in any wholly-owned Subsidiary thereof and Investments of any wholly-owned Subsidiary in Borrower, CNL HP or in another wholly-owned Subsidiary of Borrower or CNL HP; (c) Investments of Borrower, CNL HP or any wholly-owned Subsidiary of Borrower or CNL HP in any Person if after giving effect to such Investment, Borrower and CNL HP are in compliance with Section 6.12(g) of this Agreement; (f) Investments represented by Swap Contracts; (g) Investment in secured notes, mortgages, deeds of trust, collateralized mortgage obligation, or other secured debt instruments, provided that after giving effect to Investment, Borrower are in compliance with Section 6.12(g) of this Agreement; (h) Investments consisting of inter-company Indebtedness in the ordinary course of business; (i) Investments in a Person, if as a result such Person is merged, consolidated or amalgamated with or into, or transfer or coveys substantially all of its assets to, or is liquidated into, a Borrower or a Guarantor; and (j) with respect to any Subsidiary that is not an Owner or Tenant, Investments which individually or in the aggregate would not reasonably be expected to except: (b) Guarantees by or from Borrower, CNL HP or any Subsidiary in respect of Indebtedness otherwise permitted hereunder; (c) obligations (contingent or otherwise) of Borrower, CNL HP or any Subsidiary thereof existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;   TERM LOAN AGREEMENT   Page 41 (d) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i). (e) Indebtedness existing as of the date of this Agreement; (f) with respect to any Subsidiary that is not an Owner or Tenant, Indebtedness result in a Material Adverse Effect; and (g) Indebtedness permitted under Sections 6.12(e), (f) and (i). hereafter acquired) to or in favor of any Person (in each instance, a “Corporate Transaction”), except that, so long as no Default exists or would result therefrom: (a) any Subsidiary of Borrower or CNL HP may merge with (i) Borrower or CNL HP, provided that Borrower or CNL HP shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries of Borrower or CNL HP, provided that when any wholly-owned Subsidiary of Borrower or CNL HP is merging with another such Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person; (b) any Subsidiary of Borrower or CNL HP may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower, CNL HP or to another Subsidiary of Borrower or CNL HP; provided that if the transferor in such a transaction is a wholly-owned Subsidiary of Borrower or CNL HP, then the transferee must either be Borrower, CNL HP or a wholly-owned Subsidiary thereof; and (c) any Corporate Transaction shall be permitted provided the same does not result in a Change of Control. Disposition, except: (b) any Corporate Transaction that does not result in a Change of Control; (c) Dispositions of equipment or other personal property to the extent the same is promptly replaced with equipment or other personal property of similar utility, value and quality; (d) Disposition permitted by Section 7.04; (e) Dispositions made in connection with the sale, transfer or conveyance of a Pool Asset; provided Borrower complies with the provisions of Section 2.14(c) with respect to the removal of such Pool Asset from the Unencumbered Pool; and (f) with respect to any Subsidiary that is not an Owner or Tenant and the assets of any such Subsidiary that is not an Owner or Tenant, any Dispositions made in provided, however, that any such Disposition shall be for fair market value. or issue or sell any Equity Interests (other than publicly traded shares of CNL HP, which are expressly permitted hereby), except for Restricted Payments necessary and required to be made in order for CNL HP to maintain its REIT status and except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (a) each Subsidiary of Borrower or CNL HP may make Restricted Payments to Borrower, any Guarantor and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;   TERM LOAN AGREEMENT   Page 42 (b) Borrower, CNL HP and each Subsidiary thereof may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; and (c) Borrower, CNL HP and each Subsidiary thereof may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests. substantially different from those lines of business conducted by Borrower, CNL HP and the Subsidiaries thereof on the date hereof or any business substantially related or incidental thereto. any Affiliate of Borrower or CNL HP, whether or not in the ordinary course of Borrower, CNL HP or such Subsidiary as would be obtainable by such Person at the time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the foregoing restriction shall not apply to transactions between or among Borrower and any Guarantor or between and among Guarantors. this Agreement, any other Loan Document, any Indebtedness permitted under Section 7.03g, any Guarantee permitted by Section 7.03(b) hereof or, with respect to any Subsidiary that is not an Owner, any Contractual Obligation entered into by such Subsidiary in connection with any Lien, Investment, Indebtedness or Disposition permitted hereunder) that (a) limits the ability (i) of any Subsidiary of Borrower or CNL HP to make Restricted Payments to Borrower or CNL HP or to otherwise transfer property to Borrower or CNL HP, (ii) of any Subsidiary of Borrower or CNL HP to Guarantee the Indebtedness of Borrower or (iii) of Borrower, CNL HP or any Subsidiary thereof to create, incur, assume or suffer to exist Liens on property of such Person; provided, however, that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.03(f) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person. 7.11 Leasing Restrictions. Without the prior written consent of Agent, neither Borrower, nor any Owner or Tenant, shall (i) lease any Pool Asset to a single tenant (each herein referred to as a “Triple Net Lease”), or (ii) modify or amend any existing Triple Net Lease to the extent that such amendment or modification includes one or more of the following: (a) reduction of rent (including waiving any rent payments); (b) reduction of term, (c) modification to the obligor, and (d) other material changes that may impact the value of the asset. In connection with the foregoing, Agent shall respond by approving or disapproving the lease within ten (10) days after receipt of the copy from Borrower. Agent’s failure to approve or disapprove the lease within that period shall constitute approval of the lease. Borrower shall pay all reasonable costs incurred by Agent in connection with Agent’s review and approval of tenant leases, including reasonable attorneys’ fees and costs. 7.12 OFAC. No Loan Party shall (a) directly or through its Affiliates and agents, conduct any business or engage in any transaction or dealing with any Sanctioned Persons or Sanctioned Entities, including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Sanctioned Persons or Sanctioned Entities, (b) directly or through its Affiliates and agents, deal in, or otherwise engage in any transaction   TERM LOAN AGREEMENT   Page 43 relating to, any property or interests in property blocked pursuant to the Executive Order No. 13224; (c) directly or through its Affiliates and agents, engage in or conspire 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; or (d) fail to deliver to any Lender any certification or other evidence requested from time to time by such Lender, confirming the compliance of the Loan Parties with this section. Default: (a) Non-Payment. Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within three (3) days after the same becomes due, any interest on any Loan, or (iii) within five (5) days after written notice, any other amount due and payable hereunder or under any other Loan Document; or (b) Specific Covenants. Borrower or any other Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10, 6.11, 6.12 or 6.13 or Article VII; or continues for 30 days (provided, however, if such Loan Party has undertaken to cure in good faith such default within such 30 day period and the same cannot be reasonably cured within such 30 day period, such Loan Party shall have an additional 60 day period to cure such default) or any default or Event of Default occurs under any other Loan Document; or or statement of fact made or deemed made by or on behalf of Borrower or any when made or deemed made; or (e) Cross-Default. A default occurs and is not cured within any applicable grace or cure period to (i) any recourse indebtedness (including any guarantees) of Borrower or any Guarantor, provided, that the aggregate amount outstanding under any such indebtedness is in excess of $5,000,000, and the applicable lender or lenders has sent notices of default and acceleration in connection therewith or (ii) any non-recourse indebtedness (including any guarantees) of Borrower or any Guarantor, provided, that the amount outstanding under any such indebtedness is in excess of $25,000,000 in any one instance or $50,000,000.00 in the aggregate, and the applicable lender or lenders has sent notices of default and acceleration in connection therewith; provided, however, there shall be no Event of Default with respect to any default arising under this Section 8.01(e) during any period during which the applicable lender or lenders forbear exercising their rights and remedies with respect to the applicable default; or (f) Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 90 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 90 calendar days, or an order for relief is entered in any such proceeding; or   TERM LOAN AGREEMENT   Page 44 (g) Inability to Pay Debts; Attachment. (i) Borrower or any Loan Party becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or (h) Judgments. There is entered against Borrower or any Loan Party (i) one or more final judgments or orders for the payment of money in an aggregate outstanding amount (as to all such outstanding and unpaid judgments or orders) exceeding the $5,000,000.00 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) Borrower or any Loan Party have not paid and satisfied in full the applicable judgment or order within thirty (30) days of entry, (B) enforcement proceedings are commenced by any creditor upon such judgment or order, or (C) there is a period of 15 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or in liability of Borrower or CNL HP under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the $5,000,000.00, or (ii) Borrower, CNL HP or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or (j) Invalidity of Loan Documents. Any Loan Party contests in any manner the validity or enforceability of any Loan Document or any provision thereof; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document or any provision thereof; or (k) Environmental. Failure to remediate within the time period permitted by law or governmental order (or within a reasonable period of time given the nature of the matter if no specific time has been given) any environmental problems which would reasonably be expected to result in a Material Adverse Effect, related to properties whose aggregate book value are in excess of $15,000,000.00 after all administrative hearings and appeals have been concluded; or (l) Change of Control. There occurs any Change of Control with respect to Borrower or CNL HP; or (m) Prior Credit Agreement. There occurs any event of default under the Prior Credit Agreement, beyond any applicable grace or notice and cure period. (n) REIT Status. CNL HP fails to maintain its status as a real estate investment trust; or (o) Material Adverse Effect. There occurs any event or circumstance that has a Material Adverse Effect. continuing, Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions: (a) declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments and obligation shall be terminated; hereby expressly waived by Borrower; and (c) exercise on behalf of itself, the Lenders all rights and remedies available to it and the Lenders under the Loan Documents;   TERM LOAN AGREEMENT   Page 45 order for relief with respect to Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable without further act of Agent or any Lender. payable as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by Agent in the following order: disbursements of counsel to Agent (including fees and time charges for attorneys who may be employees of Agent) and amounts payable under Article III) payable to Agent in its capacity as such; Lenders [including fees, charges and disbursements of counsel to the respective Lenders (including fees and time charges for attorneys who may be employees of any Lender) and amounts payable under Article III], ratably among them in proportion to the respective amounts described in this clause Second payable to them; unpaid interest on the Loans and other Obligations, ratably among Lenders in proportion to the respective amounts described in this clause Third payable to them; principal of the Loans, ratably among Lenders in proportion to the respective amounts described in this clause Fourth held by them; Fifth, to Agent for the account of any Lender or any Affiliate of a Lender for any amount owed by a Loan Party under any Swap Contract between any Loan Party and such Lender or affiliate of any Lender; and paid in full, to Borrower or as otherwise required by Law. 9.01 Appointment and Authorization of Administrative Agent. (a) Each of the Lenders hereby irrevocably appoints KeyBank to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes Agent to take such actions on its behalf and to exercise such powers as are delegated to Agent by the terms hereof and thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of Agent and the Lenders, and no Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. (b) Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all liens on collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. 9.02 Rights as a Lender. The Person serving as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,   TERM LOAN AGREEMENT   Page 46 include the Person serving as Agent hereunder in its individual capacity. Such any kind of business with Borrower, CNL HP or any Subsidiary thereof or other Affiliate thereof as if such Person were not Agent hereunder and without any duty to account therefor to Lenders. 9.03 Exculpatory Provisions. Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, Agent: contemplated hereby or by the other Loan Documents that Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to any Loan Document or applicable Law; disclose, any information relating to Borrower, CNL HP or any Affiliates thereof that is communicated to or obtained by the Person serving as Agent or any of its Affiliates in any capacity; and (d) shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 8.02 and 10.01) or (ii) in the absence of its own gross negligence or willful misconduct. Agent shall not be deemed to have knowledge of any Default unless and until written notice describing such Default is given to Agent by Borrower, a Lender. Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Agent. 9.04 Reliance by Administrative Agent. Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, Agent may presume that such condition is satisfactory to such Lender unless Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. 9.05 Delegation of Duties. Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by Agent. Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub agent and to the Related Parties of Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent.   TERM LOAN AGREEMENT   Page 47 9.06 Resignation by Agent. Agent may at any time give notice of its resignation to Lenders and Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of Lenders, appoint a successor Agent meeting the qualifications set forth above; provided that if Agent shall notify Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by Agent on behalf of the Lenders under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Agent, its sub agents and their taken by any of them while the retiring Administrative Agent was acting as Administrative Agent. 9.07 Non-Reliance on Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. 9.08 No Other Duties, Etc.. Anything herein to the contrary notwithstanding, no Lender holding a title listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as Agent or a Lender hereunder. any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders and Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders, Agent and their respective agents and counsel and all other amounts due Lenders and Agent under Section 10.04) allowed in such judicial proceeding; and on any such claims and to distribute the same. Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Agent and, in the event that Agent shall consent to the making of such payments directly to Lenders, to pay to Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any other amounts due Agent under Section 10.04. Nothing contained herein shall be deemed to authorize Agent to authorize or   TERM LOAN AGREEMENT   Page 48 or the rights of any Lender or to authorize Agent to vote in respect of the claim of any Lender in any such proceeding. 9.10 Joint Lead Arranger, Documentation Agent and Syndication Agent. The titles “Joint Lead Arranger”, “Documentation Agent” and “Co-Syndication Agent” are, in each case, in name only, and shall confer no rights or ARTICLE X. MISCELLANEOUS 10.01 Amendments, Etc.. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and Borrower or the applicable Loan Party, as the case may be, and acknowledged by Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall: of each Lender; provided, however, in the sole discretion of Agent, only a waiver by Agent shall be required with respect to immaterial matters or items specified in Section 4.01(a)(iii) or (iv) with respect to which Borrower have given assurances satisfactory to Agent that such items shall be delivered promptly following the Closing Date; (b) increase the Aggregate Commitments beyond $100,000,000.00, provided that no Lender’s Commitment can be increased (or reinstated if terminated pursuant to Section 8.02) without the written consent of such Lender; payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; Loan or any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be obligation of Borrower to pay interest at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or to reduce any fee payable hereunder; (e) change either Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender; each Lender; and, provided further, that no amendment, waiver or consent shall, unless in writing and signed by Agent in addition to the Lenders required above, affect the rights or duties of Agent under this Agreement or any other Loan Document. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased, reinstated or extended without the written consent of such Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the written consent of such Defaulting Lender.   TERM LOAN AGREEMENT   Page 49 10.02 Notices; Effectiveness; Electronic Communications. mailed by certified or registered mail or sent by electronic mail address as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) if to Borrower or Agent, to the address, electronic mail address or (ii) if to any other Lender, to the address, electronic mail address or telephone number specified in its Administrative Questionnaire. registered mail, shall be deemed to have been given when received. Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b). (b) Electronic Communications. Notices and other communications to Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Agent that it is Agent or 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 Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor. LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER MATERIALS. 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 WITH BORROWER MATERIALS OR THE PLATFORM. In no event shall Agent or liability to Borrower, CNL HP, 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 Borrower’s or Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to Borrower, CNL HP, any Lender or any other Person for indirect, special, incidental, consequential (d) Change of Address, Etc. Borrower or Agent may change its 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 or telephone number for notices and other communications hereunder by notice to Borrower and Agent. In addition, each Lender agrees to notify Agent from time to time to   TERM LOAN AGREEMENT   Page 50 ensure that Agent has on record (i) an effective address, contact name, telephone number, and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to Borrower or its securities for purposes of United States Federal or state securities laws. (e) Reliance by Agent and Lenders. Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf of Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the Borrower. All telephonic notices to and other telephonic communications with Agent may be recorded by Agent, and each of the parties hereto hereby consents to such recording. The foregoing shall not exculpate Agent or any Lender from its gross negligence or willful misconduct. 10.03 No Waiver; Cumulative Remedies. No failure by any Lender or Agent to exercise, and no delay by any such Person in exercising, 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 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. (a) Costs and Expenses. Borrower shall pay (i) all reasonable out of pocket expenses incurred by Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out of pocket expenses incurred by Agent or any Lender (including the fees, charges and disbursements of any counsel for Agent or any Lender), and shall pay all fees and time charges for attorneys who may be employees of Agent or any Lender, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans. (b) Indemnification by Borrower. Borrower shall indemnify Agent (and any sub-agent thereof), each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Borrower or any other Loan Party delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, or the consummation of the transactions contemplated hereby or thereby, or, in the case of Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by Borrower, CNL HP or any Owner, or any Environmental Liability related in any way to Borrower, CNL HP, any Owner or any Tenant, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,   TERM LOAN AGREEMENT   Page 51 tort or any other theory, whether brought by a third party or by Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee, or (y) result from a claim brought by Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a (c) Reimbursement by Lenders. To the extent that Borrower for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.10(d). applicable law, neither Borrower shall assert, and each Borrower hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction. Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Borrower is made to Agent or any Lender, or Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, 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 setoff had not occurred, and (b) each Lender severally agrees to pay to Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the   TERM LOAN AGREEMENT   Page 52 successors and assigns permitted hereby, except that neither Borrower nor any obligations hereunder without the prior written consent of Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions: (i) Minimum Amounts (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender no minimum amount need be assigned; and (B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned; (iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition: (A) the consent of Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender or an Affiliate of a Lender; and (B) the consent of Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender or an Affiliate of such Lender. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of   TERM LOAN AGREEMENT   Page 53 $3,500.00; provided, however, that the Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire. (v) No Assignment to Borrower. No such assignment shall be made to Borrower, CNL HP or any of the Affiliates or Subsidiaries of Borrower or CNL HP. (vi) No Assignment to Natural Persons. No such assignment shall be made to a natural person. Subject to acceptance and recording thereof by Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, each Borrower (at its expense) shall execute and deliver a Term Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section. (c) Register. Agent, acting solely for this purpose as an agent of Borrower, shall maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. notice to, Borrower or Agent, sell participations to any Person (other than a natural person or Borrower, CNL HP or any Affiliate or Subsidiary of Borrower or CNL HP) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrower, Agent, and the Lenders shall continue to the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. Participant is made with Borrower’s prior written consent.   TERM LOAN AGREEMENT   Page 54 under its Term Note, if any) to secure obligations of such Lender, including any National Commerce Act or any other similar state laws based on the Uniform Electronic Transactions Act. (h) Deemed Consent of Borrower. If the consent of Borrower to an assignment to an Eligible Assignee is required hereunder (including a consent to an assignment which does not meet the minimum assignment threshold specified in Section 10.06(b)(i)(B)), Borrower shall be deemed to have given their consent five Business Days after the date notice thereof has been delivered to Borrower by the assigning Lender (through Agent) unless such consent is expressly refused by Borrower prior to such fifth Business Day. (i) Termination of Defaulting Lender. The Borrower may terminate the unused amount of the Commitment of any Lender that is a Defaulting Lender upon not less than fifteen (15) Business Days’ prior notice to the Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of the Defaulting Lender Waterfall shall apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Agent or any Lender may have against such Defaulting Lender. 10.07 Treatment of Certain Information; Confidentiality. Each of Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority, purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to each Borrower and its obligations, (g) with the consent of Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than Borrower. For purposes of this Section, “Information” means all information received from Borrower, CNL HP or any Subsidiary thereof relating to Borrower, CNL HP or any Subsidiary thereof or any of their respective businesses, other than any such information that is available to Agent or any Lender on a nonconfidential basis prior to disclosure by Borrower, CNL HP or any Subsidiary thereof, provided that, in the case of information received from Borrower, CNL HP or any Subsidiary thereof after the date hereof, such information is clearly identified at the time of delivery as confidential. in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Each of Agent and the Lenders acknowledges that Borrower, CNL HP or a Subsidiary thereof, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws.   TERM LOAN AGREEMENT   Page 55 continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, or any such Affiliate to or for the credit or the account of Borrower or any other Loan Party against any and all of the obligations of Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or any such Affiliate, irrespective of whether or not such Lender although such obligations of Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender different from the rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify Borrower and Agent promptly after any such setoff and application, such setoff and application. permitted by applicable Law (the “Maximum Rate”). If Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrower. In determining whether the interest contracted for, charged, or received by Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. Section 4.01, this Agreement shall become effective when it shall have been executed by Agent and when Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by this Agreement. representations and warranties have been or will be relied upon by Agent and each Lender, regardless of any investigation made by Agent or any Lender or on their behalf and notwithstanding that Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied. other jurisdiction. 10.13 Governing Law; Jurisdiction; Etc.. ACCORDANCE WITH, THE LAW OF THE STATE OF OHIO.   TERM LOAN AGREEMENT   Page 56 (b) SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF OHIO SITTING IN CUYAHOGA COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF OHIO, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH OHIO 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 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 AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. (c) WAIVER OF VENUE. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. 10.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE 10.15 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), Borrower and each other Loan Party acknowledges and agrees and acknowledges its Affiliates’ understanding that that: (i) (A) the services regarding this Agreement provided by Agent are arm’s-length commercial transactions between Borrower, each other Loan Party and their respective Affiliates, on the one hand, and Agent, on the other hand, (B) Borrower and the other Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate, and (C) Borrower and each other Loan Party is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) Agent is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for Borrower, any other Loan Party, or any of their respective Affiliates, or any other Person and (B) Agent does not have any obligation to Borrower, any other Loan   TERM LOAN AGREEMENT   Page 57 Party or any of their Affiliates with respect to the transaction contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) Agent and its Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Borrower, the other Loan Parties and their respective Affiliates, and Agent has no obligation to disclose any of such interests to Borrower, any other Loan Party of any of their respective Affiliates. To the fullest extent permitted by law, Borrower and the other Loan Parties hereby waive and release, any claims that it may have against Agent with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. hereinafter defined) and Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant to the requirements of the USA PATRIOT “Act”), it is required to obtain, verify and record information that identifies Borrower or CNL HP, which information includes the name and address of each Borrower and other information that will allow such Lender or Agent, as applicable, to identify each Borrower in accordance with the Act. 10.17 Time of the Essence. Time is of the essence of the Loan Documents. 10.18 FINAL AGREEMENT. THE WRITTEN CREDIT AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO   TERM LOAN AGREEMENT   Page 58   BORROWER: CHP PARTNERS, LP, a Delaware limited partnership By:   CHP GP, LLC, a Delaware limited liability company, General Partner   By:   CNL Healthcare Properties, Inc., a Maryland corporation, Managing Member     By:           Henry E. Moorhead, Vice President   STATE OF TEXAS    )    : COUNTY OF DALLAS    ) I, the undersigned, a Notary Public in and for said County in said State, hereby certify that Henry E. Moorhead, whose name as Vice President of CNL Healthcare Properties, Inc., a Maryland corporation, the Managing Member of CHP GP, LLC, a Delaware limited liability company, the General Partner of CHP PARTNERS, LP, a Delaware limited partnership, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he as such Vice President and with full authority, executed the same voluntarily for and as the act of said corporation on the day the same bears date. Given under my hand and official seal this 16th day of November, 2015.     Notary Public My Commission Expires:       Borrower’s Signature Page to Term Loan Agreement AGENT: KEYBANK NATIONAL ASSOCIATION, as Administrative Agent By:       Jonathan Slusher, Assistant Vice President   Agent’s Signature Page to Term Loan Agreement LENDERS: KEYBANK NATIONAL ASSOCIATION By:       KeyBank’s Signature Page to Term Loan Agreement BANK OF AMERICA, N.A. By:     Name:     Title:       Bank of America’s Signature Page to Term Loan Agreement JPMORGAN CHASE BANK, N.A. By:     Name:     Title:       JP Morgan’s Signature Page to Term Loan Agreement SUNTRUST BANK By:     Name:     Title:       Suntrust Bank’s Signature Page to Term Loan Agreement FIFTH THIRD BANK By:       Brad J. Boersma, Vice President   Fifth Third Bank’s Signature Page to Term Loan Agreement COMERICA BANK By:     Name:     Title:       Comerica Bank’s Signature Page to Term Loan Agreement THE HUNTINGTON NATIONAL BANK By:     Name:     Title:       Huntington National Bank’s Signature Page to Term Loan Agreement SEASIDE NATIONAL BANK & TRUST By:     Name:     Title:       Seaside National Bank’s Signature Page to Term Loan Agreement WHITNEY BANK By:     Name:     Title:       Whitney Bank’s Signature Page to Term Loan Agreement EASTERN BANK By:     Name:     Title:       Eastern Bank’s Signature Page to Term Loan Agreement SCHEDULE 2.01 COMMITMENTS AND APPLICABLE PERCENTAGES   Lender    Term Commitment      Applicable Percentage   KeyBank National Association    $ 40,500,000.00         15.57692308 %     $ 40,000,000.00         15.38461538 %  JPMorgan Chase Bank, N.A.    $ 40,000,000.00         15.38461538 %  SunTrust Bank    $ 40,000,000.00         15.38461538 %  Fifth Third Bank    $ 40,000,000.00         15.38461538 %  Whitney Bank    $ 20,000,000.00         7.69230769 %  The Huntington National Bank    $ 20,000,000.00         7.69230769 %  Eastern Bank    $ 10,000,000.00         3.84615385 %  Comerica Bank    $ 5,000,000.00         1.92307692 %  Seaside National Bank & Trust    $ 4,500,000.00         1.73076923 %  Total    $ 260,000,000.00         100.000000000000 %    SCHEDULE 2.01   Page 1 SCHEDULE 5.06 LITIGATION NONE.   SCHEDULE 5.06   Page 1 SCHEDULE 5.09 ENVIRONMENTAL MATTERS NONE   SCHEDULE 5.09   Page 1 SCHEDULE 5.13 SUBSIDIARIES AND OTHER EQUITY INVESTMENTS AND EQUITY INTERESTS IN BORROWER/CNL HP Part (a). Subsidiaries.   Subsidiary:    Percentage Ownership by Borrower/CNL HP: CHP 959 Lane CA MOB Owner, LLC    100% CHP 971 Lane CA MOB Owner, LLC    100% CHP Abilene TX Holding GP, LLC    100% CHP Abilene TX Holding, LP    100% CHP Abilene TX MOB GP, LLC    100% CHP Abilene TX MOB Owner, LP    100% CHP Albuquerque NM Owner, LLC    100% CHP Albuquerque NM Tenant Corp.    100% CHP Anderson IN Senior Living Owner, LLC    100% CHP Auburn WA Owner, LLC    100% CHP Auburn WA Tenant Corp.    100% CHP Austin TX Holding GP, LLC    100% CHP Austin TX Holding, LP    100% CHP Austin TX Owner GP, LLC    100% CHP Austin TX Senior Living Owner, LP    100% CHP Austin TX Tenant Corp.    100% CHP Batesville Healthcare Owner, LLC    100% CHP Bay Medical CA MOB Owner, LLC    100% CHP Beaumont Lending, LLC    100% CHP Beaumont TX Surgical Owner, LLC    100% CHP Beaverton OR Owner, LLC    100% CHP Beaverton OR Tenant Corp.    100% CHP Bend-High Desert OR Owner, LLC    100% CHP Bend-High Desert OR Tenant Corp.    100% CHP Bend OR MOB Owner, LLC    100% CHP Billings MT Owner, LLC    100% CHP Billings MT Tenant Corp.    100% CHP Birmingham AL MOB Owner, LLC    100% CHP Boise ID Owner, LLC    100% CHP Boise ID Tenant Corp.    100% CHP Broadway Healthcare Owner, LLC    100% CHP Calvert MOB Owner, LLC    100% CHP Cary NC MOB Owner, LLC    100% CHP Cascadia Partners I, LLC    75% [CHP/Cascadia JV] CHP Central Wing Annex MOB Owner, LLC    100% CHP Chapel Hill NC MOB Owner, LLC    100% CHP Chestnut Commons OH MOB Owner, LLC    100% CHP Chula Vista CA MOB Owner, LLC    100% CHP Cincinnati OH MOB Owner, LLC    100% CHP Claremont Holding, LLC    100% CHP Claremont CA Owner, LLC    100% CHP Clyde NC MOB Owner, LLC    100% CHP Columbia MO Plaza 1 MOB Owner, LLC    100% CHP Columbia MO Plaza 2 MOB Owner, LLC    100% CHP Columbia MO Plaza 4 MOB Owner, LLC    100% CHP Columbia SC Owner, LLC    100%   SCHEDULE 5.13   Page 1 CHP Columbia SC Tenant Corp.    100% CHP Coral Springs FL MOB Owner, LLC    100% CHP Corvallis-West Hills OR Owner, LLC    100% CHP Corvallis-West Hills OR Tenant Corp.    100% CHP Cypress Partners I, LLC    90% [CHP/Cypress JV] CHP Duluth GA Senior Living Owner, LLC    100% CHP Dunkirk MOB Owner, LLC    100% CHP Durham NC MOB Owner, LLC    100% CHP Escondido CA MOB Owner, LLC    100% CHP Frederick MD-Liberty MOB Owner, LLC    100% CHP Frederick MD-Patriot MOB Owner, LLC    100% CHP Glendale CA MOB Owner, LLC    100% CHP GP, LLC    100% CHP Grand Junction CO Senior Living, LLC    100% CHP Grayson GA Owner, LLC    100% CHP Grayson GA Tenant Corp.    100% CHP Greenville SC Owner, LLC    100%    100% CHP Gresham-Huntington Terrace OR Owner, LLC    100% CHP Gresham-Huntington Terrace OR Tenant Corp.    100% CHP Gulf Breeze FL Senior Living Owner, LLC    100% CHP Gulf Breeze FL Tenant Corp.    100% CHP Henderson NV Pavilion IV MOB Owner, LLC    100% CHP Henderson NV Pavilion V MOB Owner, LLC    100% CHP Henderson NV Pavilion VI MOB Owner, LLC    100% CHP Hospital Holding, LLC    100% CHP Houston TX Hospital Land Owner, LLC    100% CHP Houston TX Hospital Owner, LLC    100% CHP Houston TX MOB Owner, LLC    100% CHP Huntersville NC MOB Owner, LLC    100% CHP Huntersville NC MOB Parent, LLC    100% CHP Hurst TX Surgical Owner, LLC    100% CHP Idaho Falls ID Owner, LLC    100% CHP Idaho Falls ID Tenant Corp.    100% CHP Isle at Cedar Ridge TX Owner, LLC    100% CHP Isle at Cedar Ridge TX Tenant Corp.    100% CHP Isle at Watercrest-Bryan TX Owner, LLC    100% CHP Isle at Watercrest-Bryan TX Tenant Corp.    100% CHP Isle at Watercrest-Mansfield TX Owner, LLC    100% CHP Isle at Watercrest-Mansfield TX Tenant Corp.    100% CHP Jacksonville FL MOB Owner, LLC    100% CHP Jasper AL Owner, LLC    100% CHP Jasper AL Tenant Corp.    100% CHP Jefferson Commons Condo MOB Owner, LLC    100% CHP Jonesboro Healthcare Owner, LLC    100% CHP JV SL Development Holding, LLC    100% CHP Katy TX Member, LLC    100% CHP Knoxville Plaza A MOB Owner, LLC    100% CHP Knoxville Plaza B MOB Owner, LLC    100% CHP Knoxville TN MOB Owner, LLC    100% CHP Knoxville TN MOB Parent, LLC    100% CHP Lake Zurich IL Owner, LLC    100% CHP Lake Zurich IL Tenant Corp.    100% CHP Lancaster OH Senior Living Owner, LLC    100% CHP Las Vegas NV Rehab Owner, LLC    100% CHP Layton UT Owner, LLC    100%   SCHEDULE 5.13   Page 2 CHP Layton UT Tenant Corp.    100% CHP Leawood KS MOB Owner, LLC    100% CHP Legacy Ranch TX Owner, LLC    100% CHP Legacy Ranch TX Tenant Corp.    100% CHP Lincoln Plaza AZ MOB Owner, LLC    100% CHP Longview-Monticello Park WA Owner, LLC    100% CHP Longview-Monticello Park WA Tenant Corp.    100% CHP Magnolia Healthcare Owner, LLC    100% CHP Maplewood MN Owner, LLC    100% CHP Maplewood MN Tenant Corp.    100% CHP Margate FL Medical Arts Owner, LLC    100% CHP Margate FL Medical Park Owner, LLC    100% CHP Marietta GA Senior Living Owner, LLC    100% CHP Matthews NC MOB Owner, LLC    100% CHP Matthews NC MOB Parent, LLC    100% CHP Meadows Place TX Holding GP, LLC    100% CHP Meadows Place TX Holding, LP    100% CHP Meadows Place TX Owner GP, LLC    100% CHP Meadows Place TX Senior Living Owner, LP    100% CHP Meadows Place TX Tenant Corp.    100% CHP Medford-Arbor Place OR Owner, LLC    100% CHP Medford-Arbor Place OR Tenant Corp.    100% CHP Medical Arts MOB Owner, LLC    100% CHP MetroView-Charlotte NC MOB Owner, LLC    100% CHP MetroView-Charlotte NC MOB Parent, LLC    100% CHP Midtown-Charlotte NC MOB Owner, LLC    100% CHP Midtown-Charlotte NC MOB Parent, LLC    100% CHP Mine Creek Healthcare Owner, LLC    100% CHP Mishawaka IN Rehab Owner, LLC    100% CHP MOB Holding, LLC    100% CHP NC Specialty Hospital Owner, LLC    100% CHP NC-GA MOB Parent, LLC    100% CHP Newburyport MA MOB Owner, LLC    100% CHP NNN Development Holding, LLC    100% CHP North Mountain AZ MOB Owner, LLC    100% CHP Novi MI MOB Owner, LLC    100% CHP O’Fallon MO Owner, LLC    100% CHP O’Fallon MO Tenant Corp.    100% CHP Oklahoma City OK Rehab Owner, LLC    100% CHP Oxford NC MOB Owner, LLC    100% CHP Panama City FL Owner, LLC    100% CHP Panama City FL Tenant Corp.    100% CHP Park at Plainfield IL Owner, LLC    100% CHP Park at Plainfield IL Tenant Corp.    100% CHP Partners, LP    100% CHP Presbyterian-Charlotte NC MOB Owner, LLC    100% CHP Presbyterian-Charlotte NC MOB Parent, LLC    100% CHP Raider Ranch TX Owner, LLC    100% CHP Raider Ranch TX Senior Housing Owner, LLC    100% CHP Raider Ranch TX Tenant Corp.    100% CHP Rome GA MOB Owner, LLC    100% CHP Roxboro NC MOB Owner, LLC    100% CHP Salem-Orchard Heights OR Owner, LLC    100% CHP Salem-Orchard Heights OR Tenant Corp.    100% CHP Salem-Southern Hills OR Owner, LLC    100% CHP Salem-Southern Hills OR Tenant Corp.    100%   SCHEDULE 5.13   Page 3 CHP San Antonio TX Holding GP, LLC    100% CHP San Antonio TX Holding, LP    100% CHP San Antonio TX MOB GP, LLC    100% CHP San Antonio TX MOB Owner, LP    100% CHP Santa Monica CA MOB Owner, LLC    100% CHP Searcy Healthcare Owner, LLC    100% CHP Senior Living Net Lease Holding, LLC    100% CHP Shorewood WI Owner, LLC    100% CHP Shorewood WI Tenant Corp.    100% CHP SL Development Holding, LLC    100% CHP SL Owner Holding I, LLC    100% CHP SL Owner Holding II, LLC    100% CHP South Bay Partners I, LLC    95% [CHP/South Bay JV] CHP Sparks NV Owner, LLC    100% CHP Sparks NV Tenant Corp.    100% CHP Spivey I Jonesboro GA MOB Owner, LLC    100% CHP Spivey II Jonesboro GA MOB Owner, LLC    100% CHP Springs TX Owner, LLC    100% CHP Springs TX Tenant Corp.    100% CHP Surprise AZ Rehab Owner, LLC    100% CHP Tega Cay SC Owner, LLC    100% CHP Tega Cay SC Tenant Corp.    100% CHP Tillamook-Five Rivers OR Owner, LLC    100% CHP Tillamook-Five Rivers OR Tenant Corp.    100% CHP Town Village OK Owner, LLC    100% CHP Town Village OK Tenant Corp.    100% CHP TRS Development Holding, LLC    100% CHP TRS Holding, Inc.    100% CHP Tualatin-Riverwood OR Owner, LLC    100% CHP Tualatin-Riverwood OR Tenant Corp.    100% CHP Vancouver-Bridgewood WA Owner, LLC    100% CHP Vancouver-Bridgewood WA Tenant Corp.    100% CHP Watercrest at Bryan TX Owner, LLC    100% CHP Watercrest at Bryan TX TRS Corp.    100% CHP Watercrest at Katy TX Owner, LLC    95% [100% Owned by CHP/South Bay JV] CHP Watercrest at Katy TX TRS Corp. CHP Watercrest at Mansfield Holding, LLC    100% CHP Watercrest at Mansfield TX Owner, LLC    100% CHP Watercrest at Mansfield TX TRS Corp.    100% CHP Wausau WI Senior Living Owner, LLC    100% CHP Westville IN MOB Owner, LLC    100% CHP Yakima WA II JV Member, LLC    100% CHP Yakima WA II Owner, LLC    75% [100% Owned by CHP/Cascadia JV] CHP Yakima WA II Tenant Corp. CHP Yakima WA Owner, LLC    100% CHP Yakima WA Tenant Corp.    100% CHP Yelm-Rosemont WA Owner, LLC    100% CHP Yelm-Rosemont WA Tenant Corp.    100% CHP Yuma AZ MOB Member, LLC    90% [100% Owned by CHP/Cypress JV] CHP Yuma AZ MOB Owner, LLC    100% CHT Aberdeen SD Senior Living, LLC    100% CHT Acworth GA Owner, LLC    100% CHT Acworth GA Tenant Corp.    100% CHT Billings MT Senior Living, LLC    100% CHT Brookridge Heights MI Owner, LLC    100% CHT Brookridge Heights MI Tenant Corp.        100%   SCHEDULE 5.13   Page 4 CHT Casper WY Senior Living, LLC    100% CHT Council Bluffs IA Senior Living, LLC    100% CHT Curry House MI Owner, LLC    100% CHT Curry House MI Tenant Corp.    100% CHT Decatur IL Senior Living, LLC    100% CHT Grand Island NE Senior Living, LLC    100% CHT Harborchase Assisted Living Owner, LLC    100% CHT Harborchase TRS Tenant Corp.    100% CHT Lima OH Senior Living, LLC    100% CHT Mansfield OH Senior Living, LLC    100% CHT Marion OH Senior Living, LLC    100% CHT SL IV Holding, LLC    100% CHT Symphony Manor MD Owner, LLC    100% CHT Symphony Manor MD Tenant Corp.    100% CHT Tranquility at Fredericktowne MD Owner, LLC    100% CHT Tranquility at Fredericktowne MD Tenant Corp.    100% CHT Windsor Manor AL Holding, LLC    100% CHT Woodholme Gardens MD Owner, LLC    100% CHT Woodholme Gardens MD Tenant Corp.    100% CHT Zanesville OH Senior Living, LLC    100% CHT GCI Partners I, LLC    75% [CHP/Windsor JV] CHT Windsor Manor TRS Corp.    75% [100% Owned by CHP/Windsor JV] Grinnell IA Assisted Living Owner, LLC Grinnell IA Assisted Living Tenant, LLC Indianola IA Assisted Living Owner, LLC Indianola IA Assisted Living Tenant, LLC Nevada IA Assisted Living Owner, LLC Nevada IA Assisted Living Tenant, LLC Vinton IA Assisted Living Owner, LLC Vinton IA Assisted Living Tenant, LLC Webster City IA Assisted Living Owner, LLC Webster City IA Assisted Living Tenant, LLC Part (b). Other Equity Investments. None   SCHEDULE 5.13   Page 5 SCHEDULE 10.02 ADMINISTRATIVE AGENT’S OFFICE, CERTAIN ADDRESSES FOR NOTICES BORROWER: CHP Partners, LP c/o CNL Healthcare Properties, Inc. 450 South Orange Avenue Orlando, Florida 32801 Attention: Kevin R. Maddron, Senior Vice President and Chief Financial Officer Attention: Holly J. Greer, Esq., Senior Vice President and General Counsel Telephone:   (407) 540-7519 (Maddron); and (407) 540-7546 (Greer) Electronic Mail:   [email protected]; [email protected] U.S. Taxpayer Identification Number: 27-2963394 Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Drive Orlando, Florida 32801 Attention: Peter Luis Lopez, Esq. Telephone:   (407) 418-6277 Electronic Mail:   [email protected]   SCHEDULE 10.02   Page 1 ADMINISTRATIVE AGENT: Administrative Agent’s Office (for payments and Requests for Credit Extensions): KeyBank National Association 127 Public Square Cleveland, Ohio 44114 Attention: Brandon Taseff Telephone: (216) 689-4968 Telecopier: (216) 689-5970 Electronic Mail: [email protected] Account No.: Ref:                      ABA# 026009593 Other Notices as Administrative Agent: KeyBank National Association 4910 Tiedeman Road, 3rd Floor Brooklyn, Ohio 44144 Attention: Amy L. MacLearie Telephone: (216) 813-6935 Telecopier: (216) 357-6383 Electronic Mail: [email protected] EXHIBIT A Date:             ,            To: KeyBank National Association, as Agent Ladies and Gentlemen: Reference is made to that certain Term Loan Agreement, dated as of [            ,         ] (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among [                                        , a                                         ] (the “Borrower”), the Lenders from time to time party thereto, and KeyBank National Association, as Administrative Agent. The undersigned hereby requests (select one): A Borrowing of Committed Loans A conversion or continuation of Committed Loans           4. For LIBOR Rate Loans: with an Interest Period of          months.   BORROWER By:     Name:     Title:       A-1 EXHIBIT B FORM OF TERM NOTE   $            FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to              or registered assigns (“Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to Borrower under that certain Term Loan Agreement, dated as of [            ,             ] (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Borrower, the Lenders from time to time party thereto, and KeyBank National Association, as Administrative Agent. Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. This Note is one of the Term Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. No amount borrowed hereunder and repaid may be reborrowed. This Note is unsecured. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto. STATE OF OHIO.   [BORROWER] By:     Name:     Title:       B-1 Form of Term Note   Date    Type of Loan Made    Amount of Loan Made    End of Interest Period    Amount of Principal or Interest Paid This Date    Outstanding Principal Balance This Date    Notation Made by                                                                                                                                                                                                                                                                                                                                                                                                                                 B-2 Form of Term Note EXHIBIT C FORM OF COMPLIANCE CERTIFICATE   Ladies and Gentlemen: defined therein being used herein as therein defined), among CHP PARTNERS, LP, a Delaware limited partnership (“Borrower”), each lender from time to time party hereto (collectively, “Lenders” and individually, a “Lender”), and KEYBANK NATIONAL ASSOCIATION, a national banking association, as Administrative Agent. he/she is the                                          of Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to Agent on the behalf of Borrower, and that: 1. The Borrower has delivered the year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section. 1. The Borrower has delivered the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of Borrower ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of each Borrower and its review of the transactions and condition (financial or otherwise) of Borrower during the accounting period covered by such financial statements. 3. A review of the activities of Borrower during such fiscal period has been during such fiscal period Borrower performed and observed all its Obligations under the Loan Documents, and [to the best knowledge of the undersigned during such fiscal period, Borrower performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.] —or— [to the best knowledge of the undersigned, during such fiscal period, the following covenants or conditions have not been performed or observed and the   C-1 Form of Compliance Certificate 4. The representations and warranties of Borrower contained in Article V of the Agreement, and/or any representations and warranties of Borrower or any other Loan Party that are contained in any document furnished at any time under or in connection with the Loan Documents, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to refer to the most recent Section 6.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered. 5. The financial covenant analyses and information set forth on Schedule 2             ,         .     Name:     Title:       C-2 Form of Compliance Certificate SCHEDULE 2 to the Compliance Certificate   I.   Section 6.12(a) – Leverage Ratio.      A.   CNL HP’s consolidated Total Indebtedness at Statement Date:   $                   B.   Gross Asset Value at Statement Date:   $                   C.   Leverage Ratio: (Line 1.A. divided Line 1.B.)   $                   D.   Maximum Permitted Leverage Ratio:   $                   E.   Compliance: Yes/No   II.   Section 6.12(b) – Fixed Charge Coverage Ratio.      A.   EBITDA       1.   consolidated net income:   $                     2.   plus income tax expense:   $                     3.   plus interest expense:   $                     4.   plus depreciation and amortization:   $                     5.   plus acquisition and closing costs and extraordinary or non-recurring gains and losses:   $                     6.   plus other non-cash items:   $                     7.   plus the applicable Person’s share of the EBITDA of its unconsolidated Affiliates and Subsidiaries:   $                     8.   Total Consolidated EBITDA:   $                   B.   Consolidated Fixed Charges       1.   consolidated interest expense:   $                     2.   plus the current portion of principal paid or payable with respect to the Total Indebtedness of CNL HP:   $                     3.   plus all preferred distributions paid during the period:   $                     4.   plus the current portion of capitalized lease obligations:   $                     5.   Total Fixed Charges:   $                   C-3 Form of Compliance Certificate   C.   Ratio (Line II.A.8 ÷ Line II.B.5):              to 1.0      D.   Minimum Required Fixed Coverage Charge Ratio:              to 1.0      E.   Compliance: Yes/No   III.   Section 6.12(c) – Minimum Consolidated Net Worth.      A.   Consolidated Net Worth at Statement Date:       1.   shareholders’ equity at Statement Date:   $                     2.   plus accumulated depreciation and amortization as of such date:   $                     3.   less all intangible assets (excluding those related to value of leases from real estate acquisitions) plus intangible liabilities as of such date:   $                     4.   Total Consolidated Net Worth   $                   B.   Minimum Required Consolidated Net Worth:       1.   $            .00 :   $                     2.   plus 80% of net equity capital proceeds raised since December 19, 2014:   $                     Minimum Required Consolidated Net Worth: (III.B.1 plus III.B.2):   [$              ]    C.   Compliance: Yes/No   IV.   Section 6.12(d) – Minimum Cash Distribution Ratio.      A.   Total cash distributions as of Statement Date (net of any distributions through dividend reinvestment policy):   $                   B.   FFO   $                   C.   Cash Distribution Ratio (Line V.A ÷ Line V.B):          %    Maximum Permitted:     95 %    D.   Compliance: Yes/No   V.   Section 6.12(e) – Maximum Secured Indebtedness Ratio.      A.   Borrower’s total Secured Indebtedness   $                   B.   Borrower’s Gross Asset Value   $                   C.   Ratio (Line V.A ÷ Line V.B):          %    C-4 Form of Compliance Certificate VI.   Section 6.12(f) – Maximum Secured Recourse Debt.      A.   Borrower’s total secured recourse debt:   $                   B.   Gross Asset Value   $                   C.   Ratio (Line VI.A ÷ Line VI.B):          %    Maximum Permitted     15 %    D.   Compliance: Yes/No   VII.   Section 6.12(g) – Maximum Other Investments.      A.   Other Investments       1.   Unimproved land:   $                     2.   plus Development Properties:   $                     3.   plus mortgage notes:   $                     4.   Total Other Investments:   $                   B.   Gross Asset Value:   $                   C.   Ratios: (Line VII. A.1 to Line VII B) (Line VII A.3 to Line VII.B) (Line VII.A.4 ÷ Line VII.B)                        %  %  %    Maximum Permitted:         5 10 25 %  %  %    D.   Compliance: Yes/No   VIII.   Section 6.12(h) – Unsecured Interest Coverage.      A.   Adjusted NOI for the applicable period:   $                   B.   Unsecured Interest Expense for the applicable period:   $                   C.   Unsecured Interest Coverage (Line VIII.A÷VIII.B):   $                   Minimum Required:     1.75 to 1.0      D.   Compliance: Yes/No     C-5 Form of Compliance Certificate EXHIBIT D FORM OF ASSIGNMENT AND ASSUMPTION [THIS EXHIBIT D IS A KEYBANK PREFERENCE OR POLICY. Do not alter without the approval of the Legal Department and Commercial Agency Management.] [the][each] Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each] Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] hereunder are several and not joint.]. Capitalized terms used but not defined herein shall have the meanings given to them in the Term Loan Agreement identified below (the “Loan Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Loan Agreement, as of the Effective Date inserted by Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Loan Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Loan Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as, [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor. 1. Assignor[s]:                      2. Assignee[s]:                      for each Assignee, indicate Affiliate of [identify Lender]] 3. Borrower(s):                      4. Administrative Agent: KeyBank National Association, as the administrative agent under the Loan Agreement 5. Loan Agreement: [Term Loan Agreement, dated as of                     , among                     , the Lenders from time to time party thereto, KeyBank National Association, as Administrative Agent] 6. Assigned Interest[s]:   D-1 Form of Assignment and Assumption Agreement Assignor[s]    Assignee[s]    Facility Assigned    Aggregate Amount of Commitment/Loans for all Lenders      Amount of Commitment/Loans Assigned      Percentage Assigned of Commitment/Loans     CUSIP No.          $                    $                           %             $                    $                           %             $                    $                           %    [7. Trade Date:                     ] Effective Date:             , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]   ASSIGNOR [NAME OF ASSIGNOR] By:       Title: ASSIGNEE [NAME OF ASSIGNEE] By:       Title:   [Consented to and] Accepted: KeyBank National Association, as   Administrative Agent By:       Title: [Consented to:] By:       Title:   D-2 ASSIGNMENT AND ASSUMPTION 1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or made in or in connection with the Loan Agreement or any other Loan Document, condition of Borrower, any of its Subsidiaries or Affiliates or any other Person by Borrower, any of its Subsidiaries or Affiliates or any other Person of any of 1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has contemplated hereby and to become a Lender under the Loan Agreement, (ii) it meets all the requirements to be an assignee under Section 10.06(b)(iii),(v) and (vi) of the Loan Agreement (subject to such consents, if any, as may be required under Section 10.06(b)(iii) of the Loan Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Loan Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, and (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Loan Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section [    ] thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest ,and (vi) it has independently and without reliance upon Agent or any other made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest; and (b) agrees that (i) it will, independently and without reliance upon Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall 2. Payments. From and after the Effective Date, Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.                      [confirm that choice of law provision parallels the Loan Agreement].   D-3 EXHIBIT E FORM OF UNENCUMBERED POOL CERTIFICATE KeyBank National Association, as Agent 127 Public Square Cleveland, Ohio 44114 Attention: Brandon Taseff     RE: CHP PARTNERS, LP Ladies and Gentlemen: The undersigned is the                      of CHP Partners, LP, a Delaware limited partnership (“Borrower”), and is authorized to execute and deliver this Unencumbered Pool Certificate on behalf of Borrower pursuant to the Term Loan Agreement, dated as of November 19, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), among Borrower, each lender from time to time party hereto (collectively, “Lenders” and individually, a “Lender”), and KEYBANK NATIONAL ASSOCIATION, a national banking association, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings specified in the Loan Agreement. The Borrower hereby delivers this Unencumbered Pool Certificate to you pursuant to Section 6.02(b) of the Loan Agreement and in connection therewith hereby certifies to the Agent as follows:     (a) The Borrower are furnishing to you herewith the Unencumbered Pool Certificate. This certificate is submitted in compliance with requirements of the Agreement.     (b) The Unencumbered Pool analyses and information set forth on Schedule 1 attached hereto are true and accurate, in all material respects, on and as of the date of this Certificate.     (c) The undersigned officer is executing and delivering this certificate solely in his or her capacity as an authorized officer of the Borrower, and not individually (and therefore is not subject to personal liability on account of the certifications set forth herein), and is providing the attached information to demonstrate compliance. IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Borrowing Base Certificate for and on behalf of the Borrower as of             , 201    .     Name:     Title:       E-1 Form of Unencumbered Pool Certificate SCHEDULE A UNENCUMBERED POOL CALCULATION   E-2

New Energy Technologies, Inc. 3905 National Drive Suite 110 Burtonsville, Maryland 20866 By Edgar May 26, 2010 United States Securities and Exchange Commission 100F Street, NE Washington, D.C. 20548 Attention: Pamela Long, Assistant Director Mail Stop 4631 RE: New Energy Technologies, Inc. (the “Company”) Registration Statement on Form S-1 (File No. 333-162417), filed on October 9, 2009 (the“ Registration Statement ”) Dear Sir or Madam: On behalf of the Company, request is hereby made pursuant to Rule 461 of the Securities Act of 1933, as amended, that the effective date for the above-referenced Registration Statement be accelerated to 3:30 pm on Friday, May 28, 2010, or as soon as practicable thereafter. In connection with the foregoing, we hereby acknowledge that: Should the Securities and Exchange Commission (the “ Commission ”) or the staff, acting pursuant to delegated authority, declare the Registration Statement effective, it does not foreclose the Commission from taking any action with respect to the Registration Statement. The action of the Commission or the staff, acting by delegated authority, in declaring theRegistration Statementeffective does not relieve the Company from its full responsibility for the adequacy and accuracy of the disclosure in the Registration Statement; and The Company may not assert the declaration of effectiveness as a defense in any proceeding initiated by Commission or any person under the federal securities laws of the United States. Thank you for your courtesy, assistance and cooperation in this matter. Very truly yours, New Energy Technologies, Inc. By: /s/ Meetesh V. Patel Name: Meetesh V. Patel Title: Chief Executive Officer and President

Exhibit 10.1 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated July 17, 2007 and is effective as of January 1, 2007, by and between Joel M. Bennett ("Executive") and JAKKS Pacific, Inc., a Delaware corporation ("JAKKS" or the "Company"). WITNESSETH:     WHEREAS, Executive and the Company entered into an Employment Agreement, dated as of January 1, 2003 that expired on December 31, 2006; and     WHEREAS, Executive and the Company desire to enter into a new Employment Agreement to provide for Executive's continued employment by the Company on the terms and subject to the conditions set forth herein.     NOW, THEREFORE, in consideration of the mutual promises, representations and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1.  OFFICES AND DUTIES. (a)  The Company hereby employs Executive during the Term (as hereinafter defined) to serve as the Company's Executive Vice President and Chief Financial Officer. As such, Executive shall have principal responsibility and authority (subject to the provisions of Section 1(c)) to administer all financial and accounting functions for the Company and its subsidiaries, including without limitation with respect to:   (i) financial recordkeeping and reporting;   (ii) interfacing with the Company's independent auditors;   (iii) preparation and interpretation of budgets, projections and other financial analyses;   (iv) tax reporting and compliance;   (v) cash management; and   (vi) reporting to and advising the Company's Board of Directors and executive management on financial, accounting, tax and compensation matters. Within the scope of such functions and duties, Executive shall perform such administrative and supervisory services on behalf of the Company as the Company's Board of Directors or a Superior Officer (as hereinafter defined) may from time to time reasonably direct. The Company's Board of Directors or a Superior Officer may appoint or designate Executive to serve in such other corporate offices of the Company or a Subsidiary (as hereinafter defined) as they may from time to time deem necessary, proper or advisable; provided that, without his consent (which shall not be unreasonably withheld), Executive shall not be required to occupy or serve in any office which (i) is not reasonably related to his functions and duties as Chief Financial Officer and (ii) involves other substantial duties or liabilities.     (b)  Executive shall devote substantially all of his business time and attention to the business and affairs of the Company.     (c)  Executive shall at all times be subject to the direction and control of the Company's Board of Directors and the Superior Officers and observe and comply with such rules, regulations, policies and practices as the Company's Board of Directors or the Superior Officers may from time to time establish.     (d)  Executive hereby accepts such employment and agrees that throughout the Term he shall faithfully, diligently and to the best of his ability, in furtherance of the business of the Company, perform the duties assigned to him or incidental to the offices assumed by him pursuant to this Section. 2.  TERM. The employment of Executive hereunder shall commence as of the date hereof and continue for a term ending on December 31, 2009, subject to earlier termination upon the terms and conditions provided elsewhere herein (the "Term"). As used herein, "Termination Date" means the last day of the Term. 3.  COMPENSATION.     (a)(i)  Base Salary. As compensation for his services hereunder, the Company shall pay to Executive a base salary at the rate of $400,000 per annum (the "Base Salary"). The Base Salary shall be paid to Executive in substantially equal installments no less often than twice monthly, subject to any required tax withholding.     (a)(ii)  Restricted Stock Award. Subject to the terms of the Company's 2002 Stock Award and Incentive Plan (as in effect on the date hereof and as subsequently may be amended, from time to time, the "Plan") and the applicable restricted stock agreement, which shall be substantially in the form annexed hereto as Exhibit A, upon the execution of this Agreement, the Company shall grant to Executive 15,000 shares of restricted common stock, par value $.001 per share (the "Restricted Stock"), of the Company. 5,000 shares of this award of Restricted Stock shall vest (and associated restrictions shall lapse) on each of December 31, 2007, 2008 and 2009, all in accordance with the terms of the applicable restricted stock agreement.     (b)  Bonus. The Compensation Committee of the Board of Directors or the Board of Directors may, from time to time, award an annual bonus to Executive, in cash or in property, in an amount up to fifty percent (50%) of the Base Salary, as such Committee or the Board of Directors may determine in its sole discretion to be appropriate based on business criteria established or determined by the Committee, including economic and business conditions affecting the Company, and Executive's personal performance. Such annual bonus may be awarded in accordance with the Plan or as otherwise determined by such Committee or the Board of Directors.     (c)  Additional Compensation. The Company shall pay to the Executive such additional incentive compensation as the Compensation Committee of the Board of Directors or the Board of Directors may from time to time determine.     (d)  Nothing contained herein and no action taken in respect of any bonus or additional compensation (or otherwise in respect of Sections 3(b) or (c)) shall create or be construed to create a trust of any kind. Any bonus or additional compensation under Sections 3(b) or (c) shall be paid from general funds of the Company, and no special or separate fund shall be established, and no segregation of assets shall be made, to assure payment of any bonus or additional compensation hereunder.     (e)  In addition to his Base Salary and other compensation provided herein, Executive shall be entitled to participate, to the extent he is eligible under the terms and conditions thereof, in any stock, stock option or other equity participation plan and any profit-sharing, pension, retirement, insurance, medical service or other employee benefit plan generally available to the executive officers of the Company, and to receive any other benefits or perquisites generally available to the executive officers of the Company pursuant to any employment policy or practice, which may be in effect from time to time during the Term. Except as otherwise expressly provided herein, the Company shall be under no obligation hereunder to institute or to continue any such employee benefit plan or employment policy or practice.     (f)  During the Term, Executive shall not be entitled to additional compensation for serving as a director or officer of the Company or any Subsidiary (other than Executive Vice President or Chief Financial Officer of the Company), if such service is reasonably related to his duties and functions as the Company's Chief Financial Officer and does not involve any other substantial duties or liabilities. 4.  EXPENSE ALLOWANCE.     (a)  The Company shall pay directly, or advance funds to Executive or reimburse Executive for, all expenses reasonably incurred by him in connection with the performance of his duties hereunder and the business of the Company, upon the submission to the Company of itemized expense reports, receipts or vouchers in accordance with its then customary policies and practices.     (b)  The Company shall provide to Executive a suitable automobile or other vehicle for his exclusive use and shall pay the entire cost thereof (including, without limitation, purchase price or lease payments, insurance premiums, repair charges, and maintenance and operating expenses), other than fuel charges, or shall pay to executive a monthly automobile allowance in the amount of $1,000. 5.  LOCATION.  Except for routine travel and temporary accommodation reasonably required to perform his services hereunder, Executive shall not be required to perform his services hereunder at any location other than the Company's principal executive office. 6.  OFFICE.  The Company shall provide Executive with suitable office space, furnishings and equipment, secretarial and clerical services and such other facilities and office support as are reasonably necessary for the performance of his services hereunder. 7.  VACATION.  Executive shall be entitled to four weeks paid vacation during each year of his employment hereunder, such vacation to be taken at such time or times as shall be agreed upon by Executive and the Company. Vacation time shall be cumulative from year to year, except that Executive shall not be entitled to take more than six weeks vacation during any consecutive 12-month period during the Term. 8.  KEY-MAN INSURANCE.  The Company shall have the right from time to time to purchase, increase, modify or terminate insurance policies on the life of Executive for the benefit of the Company in such amounts as the Company may determine in its sole discretion. In connection therewith, Executive shall, at such time or times and at such place or places as the Company may reasonably direct, submit himself to such physical examinations and execute and deliver such documents as the Company may deem necessary or appropriate. 9.  CONFIDENTIAL INFORMATION.  Executive shall, during the Term and for a period of five years thereafter, hold all Confidential Information (as hereinafter defined) in a fiduciary capacity for the benefit of the Company, and he shall not, at any time hereafter, without the prior written consent of the Company, use or disclose to any Person, other than the Company or its designees, any such Confidential Information, except: (a)  to the extent reasonably required for Executive to perform his functions and duties hereunder; (b)  to the extent disclosure is required by an order, subpoena, demand or other legal process; provided that Executive promptly gives notice thereof to the Company so that the Company may oppose such disclosure or seek a protective order or other confidential treatment of such Confidential Information; (c)  to the extent any Confidential Information becomes generally available in the public domain (other than through the disclosure of such Confidential Information by Executive in violation of the provisions of this Section or any other confidentiality obligation of Executive in favor of the Company or a Subsidiary); and (d)  that any Confidential Information that was known to Executive prior to his initial employment by the Company may be used by or disclosed by Executive after the Termination Date. On the Termination Date or upon request by the Company at any time prior thereto, Executive shall deliver to the Company any manuals, records, files, lists and other documentation (regardless of form) embodying or containing Confidential Information, without retaining any copy thereof, except to the extent such Confidential Information may be retained for use or disclosure by Executive pursuant to clauses (a) through (d) of the preceding sentence. 10.  INTELLECTUAL PROPERTY.  Subject to Sections 2870 and 2871 of the California Labor Code:   (a)  Any Invention (as hereinafter defined) conceived, developed, created or made by Executive, alone or with others, during the Term and applicable to the business of the Company, whether or not patentable or registrable, shall become the sole and exclusive property of the Company.   (b)  Executive shall disclose the same promptly and completely to the Company and shall, during the Term or thereafter, (i) execute all documents requested by the Company for vesting in the Company the entire right, title and interest in and to the same, (ii) execute all documents requested by the Company for filing applications for and procuring such patents, trademarks, service marks or copyrights as the Company, in its sole discretion, may desire to prosecute, and (iii) give the Company all assistance it may reasonably require, including the giving of testimony in any Proceeding (as hereinafter defined), in order to obtain, maintain and protect the Company's right therein and thereto; provided that the Company shall bear the entire cost and expense of such assistance, including without limitation paying Executive reasonable compensation for any such assistance after the Termination Date. 11.  NON-SOLICITATION. During the Term, and unless his employment terminates pursuant to Section 14(a), for a further period of two years thereafter, Executive shall not, directly or indirectly, for himself or on behalf of any other Person, attempt in any manner to persuade any supplier, customer or vendor of the Company or Subsidiary to cease doing business or to reduce the amount of business with the Company or such Subsidiary which any such supplier, customer or vendor has customarily done or contemplates doing with the Company or such Subsidiary. Executive acknowledges that the provisions of this Section, and the period of time and scope and type of restrictions on his activities set forth herein, are reasonable and necessary for the protection of the Company. 12.  TERMINATION UPON DEATH OR DISABILITY.  Executive's employment hereunder shall terminate immediately upon his death. In the event that Executive is unable to perform his duties hereunder by reason of any disability or incapacity (due to any physical or mental injury, illness or defect) for an aggregate of 90 days in any consecutive 12-month period, the Company shall have the right to terminate Executive's employment hereunder within 60 days after the 90th day of his disability or incapacity by giving Executive notice to such effect at least 30 days prior to the date of termination set forth in such notice, and on such date such employment shall terminate. 13.  TERMINATION BY THE COMPANY.        (a)  In addition to any other rights or remedies provided by law or in this Agreement, the Company may terminate Executive's employment under this Agreement for the reasons set forth in this Section 13(a), any of which reasons shall constitute “cause” and any of which events shall be referred to as a “For Cause Event”, if: (i)  Executive is convicted of, or enters a plea of guilty or nolo contendere (which plea is not withdrawn prior to its approval by the court) to, a felony offense and either Executive fails to perfect an appeal of such conviction prior to the expiration of the maximum period of time within which, under applicable law or rules of court, such appeal may be perfected or, if Executive does perfect such an appeal, his conviction of a felony offense is sustained on appeal; or (ii)  the Company's Board of Directors determines, after due inquiry, that Executive has: (A) committed fraud against, or embezzled or misappropriated funds or other assets of, the Company or any Subsidiary; (B) violated, or caused the Company or any Subsidiary, or any officer, employee or other agent thereof, or any other Person to violate, any material law, regulation or ordinance, which violation has or would reasonably be expected to have a significant detrimental effect on the Company, or any material rule, regulation, policy or practice established by the Board of Directors of the Company or any Subsidiary; (C) on a persistent or recurring basis, (1) failed properly to perform his duties hereunder or (2) acted in a manner detrimental to, or adverse to the interests of, the Company; or   (D) violated, or failed to perform or satisfy any material covenant, condition or obligation required to be performed or satisfied by Executive hereunder.       (b)  The Company may effect such termination for cause by giving Executive notice to such effect, setting forth therein the Termination Date (which may be the date such notice is given, in case such termination is based on paragraph (i) or clause A of paragraph (ii) of Section 13(a), but which shall otherwise be at least 20 days after the date such notice is given) and, in reasonable detail, the factual basis for such termination, and, in such event, such termination shall be effective on the Termination Date set forth in such notice, unless Executive avoids such termination by curing to the reasonable satisfaction of the Company's Board of Directors the factual basis for termination set forth therein or otherwise providing the Board of Directors with information reasonably sufficient for the Board to determine that the termination should not be effected.       (c)  In making any determination pursuant to this Section 13(a) as to the occurrence of any For Cause Event described in clauses (A) to (D) of paragraph (ii) thereof, each of the following shall constitute convincing evidence of such occurrence: (i)  if Executive is made a party to, or target of, any Proceeding arising under or relating to any For Cause Event, Executive's failure to defend against such Proceeding or to answer any complaint filed against him therein, or to deny any claim, charge, averment, or allegation thereof asserting or based upon the occurrence of a For Cause Event; (ii)  any judgment, award, order, decree or other adjudication or ruling in any such Proceeding finding or based upon the occurrence of a For Cause Event (that is not reversed or vacated on appeal); or (iii)  any settlement or compromise of, or consent decree issued in, any such Proceeding in which Executive expressly admits the occurrence of a For Cause Event; provided that none of the foregoing shall be dispositive or create an irrebuttable presumption of the occurrence of such For Cause Event; and provided further that the Company's Board of Directors may rely on any other factor or event as convincing evidence of the occurrence of a For Cause Event.       (d)  Nothing contained herein shall prevent the Company’s Board of Directors from making its determination that a For Cause Event has occurred subsequent to the termination of the Executive’s employment hereunder.       (e)  In addition to any other termination rights provided in this Agreement, the Company may terminate Executive’s employment under this Agreement without cause and for no reason or any reason upon thirty (30) days prior written notice given at any time after the six month anniversary of the date of this Agreement, in which event the Executive shall be entitled to receive the amounts provided for under Sections 15(a) and 15(c) below. 14.  TERMINATION BY EXECUTIVE.  In addition to any other rights or remedies provided by law or in this Agreement, Executive may terminate his employment hereunder if:       (a)  the Company violates, or fails to perform or satisfy any material covenant, condition or obligation required to be performed or satisfied by it hereunder or, (ii) as a result of any action or failure to act by the Company, there is a material change in the nature or scope of the duties, obligations, rights or powers of Executive's employment, by giving the Company notice to such effect, setting forth in reasonable detail the factual basis for such termination, at least 10 days prior to the date of termination set forth therein; provided, however, that the Company may avoid such termination if it, prior to the date of termination set forth in such notice, (i) cures or explains to the reasonable satisfaction of Executive the factual basis for termination set forth therein or (ii) confirms in writing that Executive has no further obligation to perform any of the duties assigned to him by the Company or any other services for the Company, and continues to pay and/or provide Executive with the compensation and benefits set forth in Sections 3 and 4 hereof in accordance with the provisions of this Agreement; and       (b)  a Change of Control (as hereinafter defined) occurs during the Term, by giving the Company notice to such effect, setting forth the event or circumstance constituting such Change of Control, such termination to be effective upon the date of termination set forth therein (not less than 90 days after the date of such notice). The termination by Executive of his employment pursuant to this Section 14 shall resignation" of his employment. 15.  COMPENSATION UPON TERMINATION.  Notwithstanding anything contained       (a)  Upon termination of Executive's employment hereunder, he shall be entitled to receive, in any case, any compensation or other amounts due to him pursuant to Section 3 (except as otherwise provided in Section 15(b) below) or Section 4 in respect of his employment prior to the Termination Date.       (b)  If Executive’s employment is terminated as a result of the occurrence of a “For Cause Event" pursuant to Section 13, from and after the Termination Date, the Company shall have no further obligation to Executive hereunder, including without limitation any obligation pursuant to Section 17, except for the payment to Executive of any amount required to be made pursuant to Section 15(a) above; provided, however, that payment of any bonus compensation under Section 3(b) shall only be made to the extent it has been earned or awarded with respect to the last full fiscal year immediately preceding the Termination Date, and no bonus compensation shall be paid with respect to the fiscal year in which the Termination Date occurs.       (c)  If Executive’s employment is terminated by (i) Executive pursuant to Section 14, and, if at the time Executive gives the Company the notice of termination referred to therein, the Company has not given to Executive a notice of termination upon his disability pursuant to Section 12 or "for cause" pursuant to Section 13; or (ii) the Company other than as a result of the occurrence of a "For Cause Event" pursuant to Section 13, he shall be entitled to receive an amount equal to the total amount of his annual Base Salary in effect as of the Termination Date.       (d)  If Executive's employment hereunder terminates as a result of his death or disability pursuant to Section 12, he or his guardian, custodian or other legal representative or successor shall be entitled to continue to receive the Base Salary payable pursuant to Section 3(a)(i) in the amounts and at the times provided therein for a period of six months following the Termination Date.       (e)  Except as otherwise provided in Section 15(d), any amount payable to Executive upon termination of his employment hereunder shall be paid promptly, and in any event within 30 days, after the Termination Date. 16.  CHANGE OF CONTROL.         (a)  For the purposes of this Section 16: (i)  The "Act" is the Securities Exchange Act of 1934, as amended. (ii)  A "person" includes a "group" within the meaning of Section 13(d)(3) of the Act. (iii)  "Control" is used herein as defined in Rule 12b-2 under the Act. (iv)  "Beneficially owns" and "acquisition" are used herein as defined in Rules 13d-3 and 13d-5, respectively, under the Act. (v)  "Non-Affiliated Person" means any person, other than Executive, an employee stock ownership trust of the Company (or any trustee thereof for the benefit of such trust), or any person controlled by Executive, the Company or such a trust. (vi)  "Voting Securities" includes Common Stock and any other securities of the Company that ordinarily entitle the holders thereof to vote, together with the holders of Common Stock or as a separate class, with respect to matters submitted to a vote of the holders of Common Stock, but securities of the Company as to which the consent of the holders thereof is required by applicable law or the terms of such securities only with respect to certain specified transactions or other matters, or the holders of which are entitled to vote only upon the occurrence of certain specified events (such as default in the payment of a mandatory dividend on preferred stock or a scheduled installment of principal or interest of any debt security), shall not be Voting Securities. (vii)  "Right" means any option, warrant or other right to acquire any Voting Security (other than such a right of conversion or exchange included in a Voting Security). (viii)  The "Code" is the Internal Revenue Code of 1986, as amended. (ix)  "Base amount," "present value" and "parachute payment" are used herein as defined in Section 280G of the Code.         (b)  A "Change of Control" occurs when: (i)  a Non-Affiliated Person acquires control of the Company; (ii)  upon an acquisition of Voting Securities or Rights by a Non-Affiliated Person or any change in the number or voting power of outstanding Voting Securities, such Non-Affiliated Person beneficially owns Voting Securities or Rights entitling such person to cast a number of votes (determined in accordance with Section 16(g)) equal to or greater than 25% of the sum of (A) the number of votes that may be cast by all other holders of outstanding Voting Securities and (B) the number of votes that may be cast by such Non-Affiliated Person (determined in accordance with Section 16(g)); or (iii)  upon any change in the membership of the Company's Board of Directors, a majority of the directors are persons who are not nominated or appointed by the Company's Board of Directors as constituted prior to such change.         (c)  It is intended that the present value of any payments or benefits to Executive, whether hereunder or otherwise, that are includable in the computation of parachute payments shall not exceed 2.99 times the base amount. Accordingly, if Executive receives any payment or benefit from the Company which, when added to any parachute payments he receives as a result of the Change in Control, would subject any of the payments or benefits to Executive to the excise tax imposed by Section 4999 of the Code, such parachute payments shall be reduced by the least amount necessary to avoid such tax. The Company shall have no obligation hereunder to make any payment or provide any benefit to Executive after the payment of such parachute payments which would subject any of such payments or benefits to the excise tax imposed by Section 4999 of the Code.         (d)  Any other provision hereof notwithstanding, Executive may, prior to his receipt of any parachute payments pursuant to Section 15(c)(ii), waive the payment thereof, or, after his receipt of such parachute payments thereunder, treat some or all of such amount as a loan from the Company which Executive shall repay to the Company within 180 days after the receipt thereof, together with interest thereon at the rate provided in Section 7872 of the Code, in either case, by giving the Company notice to such effect.         (e)  Any determination of any payment or benefit required to be made pursuant to this Section 16, shall be made by the Company's regularly-engaged independent certified public accountants, whose determination shall be conclusive and binding upon the Company and Executive; provided that such accountants shall give to Executive, on or before the date on which any such payment or benefit would be made, a notice setting forth in reasonable detail such determination and the basis therefor, and stating expressly that Executive is entitled to rely thereon.         (f)  The number of votes that may be cast by holders of Voting Securities or Rights upon the issuance or grant thereof shall be deemed to be the largest number of votes that may be cast by the holders of such securities or the holders of any other Voting Securities into which such Voting Securities or Rights are convertible or for which they are exchangeable or exercisable, determined as though such Voting Securities or Rights were immediately convertible, exchangeable or exercisable and without regard to any anti-dilution or other adjustments provided for therein. 17.  OTHER TERMINATION PROVISIONS.         (a)  Upon request by Executive, on the Termination Date or as soon as practicable thereafter, the Company shall assign to Executive, and Executive shall assume, the purchase agreement or lease relating to any automobile or other vehicle that the Company provides for his use on the Termination Date pursuant to Section 4(b) (other than an automobile or other vehicle owned or leased by Executive), if and to the extent assignable under the terms and conditions thereof, and thereafter Executive shall be liable for, and the Company shall be relieved of all liability for, any amount or other obligation required to be paid or performed thereunder in respect of any period commencing after the date of assignment.         (b)  Throughout the 10-year period following the Termination Date, the Company shall indemnify Executive, and hold him harmless from, any loss, damages, liability, obligation or expense that he may suffer or incur in connection with any claim made or Proceeding commenced during such period relating to his service as a director, officer, employee or agent of the Company (or any subsidiary thereof) to the same extent and in same manner as the Company shall be obligated so to indemnify Executive immediately prior to the Termination Date; provided that, if during such 10-year period the Company adopts or assumes any indemnification policy or practice with respect to its directors, officers, employees or agents that is more favorable than that in effect on the Termination Date, Executive shall be entitled to such more favorable indemnification.         (c)  Throughout the 10-year period following the Termination Date, the Company shall maintain for the benefit of Executive directors' and officers' liability insurance (on a "claims made" basis) providing coverage at least as favorable to Executive (including with respect to limits of liability, exclusions, and deductible and retention amounts) as that in effect on the Termination Date. 18.  LIMITATION OF AUTHORITY.  Except as expressly provided herein, no provision hereof shall be deemed to authorize or empower either party hereto to act on behalf of, obligate or bind the other party hereto. 19.  NOTICES.  Any notice or demand required or permitted to be given or made hereunder to or upon either party hereto shall be deemed to have been duly given or made for all purposes if (a) in writing and sent by (i) messenger or an overnight courier service against receipt, or (ii) certified or registered mail, postage paid, return receipt requested, or (b) sent by telegram, telecopy, telex or similar electronic means, provided that a written copy thereof is sent on the same day by postage-paid first-class mail, to such party at the following address: to the Company at: 11 East 26th Street New York, New York 10010 Attn.:  President Fax:  (212) 929-9278 22619 Pacific Coast Highway, Suite 250 Malibu, California 90265 Attn: President Fax: (310) 456-7099 Feder, Kaszovitz, Isaacson, Weber, Skala, Bass & Rhine LLP 750 Lexington Avenue Attn: Geoffrey A. Bass, Esq. Fax: (212) 888-7776 to Executive at: 6791 Trevino Drive Moorpark, California 93021 Fax: (805) 532-1092 or such other address as either party hereto may at any time, or from time to time, direct by notice given to the other party in accordance with this Section. The date of giving or making of any such notice or demand shall be, in the case of clause (a) (i), the date of the receipt; in the case of clause (a) (ii), five business days after such notice or demand is sent; and, in the case of clause (b), the business day next following the date such notice or demand is sent. 20.  AMENDMENT.  Except as otherwise provided herein, no amendment of this Agreement shall be valid or effective, unless in writing and signed by or on behalf of the parties hereto. 21.  WAIVER.  No course of dealing or omission or delay on the part of either party hereto in asserting or exercising any right hereunder shall constitute or operate as a waiver of any such right. No waiver of any provision hereof shall be effective, unless in writing and signed by or on behalf of the party to be charged therewith. No waiver shall be deemed a continuing waiver or waiver in respect of any other or subsequent breach or default, unless expressly so stated in writing. 22.  GOVERNING LAW.  This Agreement shall be governed by, and interpreted and enforced in accordance with, the laws of the State of New York without regard to principles of choice of law or conflict of laws. 23.  JURISDICTION.  Each of the parties hereto hereby irrevocably consents and submits to the jurisdiction of the courts of the State of New York and the United States District Court for the Southern District of New York in connection with any Proceeding arising out of or relating to this Agreement, waives any objection to venue in the County of New York, State of New York, or such District, and agrees that service of any summons, complaint, notice or other process relating to such Proceeding may be effected in the manner provided by clause (a)(ii) of Section 19. 24.  REMEDIES.  In the event of any actual or prospective breach or default under this Agreement by either party hereto, the other party shall be entitled to equitable relief, including remedies in the nature of rescission, injunction and specific performance. All remedies hereunder are cumulative and not exclusive, and nothing herein shall be deemed to prohibit or limit either party from pursuing any other remedy or relief available at law or in equity for such actual or prospective breach or default, including the recovery of damages; provided that, except as provided in Section 15 and except with respect to a breach by Executive of his obligations pursuant to Sections 9, 10 and 11, no party hereto shall be liable under this Agreement for lost profits or consequential damages. 25.  SEVERABILITY.  The provisions hereof are severable and in the event that any provision of this Agreement shall be determined to be invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions hereof shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect, and any invalid or unenforceable provision shall be deemed, without further action on the part of the parties hereto, amended and limited to the extent necessary to render the same valid and enforceable. 26.  COUNTERPARTS.  This Agreement may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one and the same agreement. 27.  ASSIGNMENT.  This Agreement, and each right, interest and obligation hereunder, may not be assigned by either party hereto without the prior written consent of the other party hereto, and any purported assignment without such consent shall be void and without effect, except that this Agreement shall be assigned to, and assumed by, any Person with or into which the Company merges or consolidates, or which acquires all or substantially all of its assets, or which otherwise succeeds to and continues the Company's business substantially as an entirety. Except as otherwise expressly provided herein or required by law, Executive shall not have any power of anticipation, assignment or alienation of any payments required to be made to him hereunder, and no other Person may acquire any right or interest in any thereof by reason of any purported sale, assignment or other disposition thereof, whether voluntary or involuntary, any claim in a bankruptcy or other insolvency Proceeding against Executive, or any other ruling, judgment, order, writ or decree. 28.  BINDING EFFECT.  This Agreement shall be binding upon and inure to the assigns. This Agreement is not intended, and shall not be deemed, to create or confer any right or interest for the benefit of any Person not a party hereto. 29.  TITLES AND CAPTIONS.  The titles and captions of the Articles and Sections of this Agreement are for convenience of reference only and do not in any way define or interpret the intent of the parties or modify or otherwise affect any of the provisions hereof. 30.  GRAMMATICAL CONVENTIONS.  Whenever the context so requires, each pronoun or verb used herein shall be construed in the singular or the plural sense and each capitalized term defined herein and each pronoun used herein shall be construed in the masculine, feminine or neuter sense. 31.  REFERENCES.  The terms "herein," "hereto," "hereof," "hereby," and "hereunder," and other terms of similar import, refer to this Agreement as a whole, and not to any Article, Section or other part hereof. 32.  NO PRESUMPTIONS.  Each party hereto acknowledges that it has had an opportunity to consult with counsel and has participated in the preparation of this Agreement. No party hereto is entitled to any presumption with respect to the interpretation of any provision hereof or the resolution of any alleged ambiguity herein based on any claim that the other party hereto drafted or controlled the drafting of this Agreement. 33.  CERTAIN DEFINITIONS.  As used herein:         (a)  "Confidential Information" means all confidential or proprietary information of the Company or a Subsidiary, including without limitation information relating to Inventions (including Confidential Information required to be disclosed to the Company pursuant to Section 10), Trade Rights, plant and equipment, products, customers, suppliers, marketing and sales, personnel, and financing and tax matters.         (b)  "Invention" means any invention, design, process, system, improvement, development or discovery or any technical specifications, know-how or information or other intellectual property relating thereto.         (c)  "Person" includes without limitation a natural person, corporation, joint stock company, limited liability company, partnership, joint venture, association, trust, government or governmental authority, agency or instrumentality, or any group of the foregoing acting in concert.         (d)  A "Proceeding" is any suit, action, arbitration, audit, investigation or other proceeding before or by any court, magistrate, arbitration panel or other tribunal, or any governmental agency, authority or instrumentality of competent jurisdiction. (e)  "Subsidiary" means any Person in which the Company, directly or indirectly, owns any equity interest (including without limitation as a general partner of a partnership or a member of a limited liability company).         (j)  "Superior Officer" means any of the Company's Chairman, Chief Executive Officer, President or Chief Operating Officer.         (k)  "Trade Right" means any claim of copyright, trademark, service mark, trade name, brand name, trade dress, logo, symbol, design or other trade right. 34.  ENTIRE AGREEMENT.  This Agreement embodies the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any prior agreement, commitment or arrangement relating hereto, including, without limitation, the Employment Agreement, which shall terminate, notwithstanding any contrary provision thereof, immediately upon the commencement of the Term.         IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as  JAKKS PACIFIC, INC.   EXECUTIVE:                       By: /s/ Stephen G. Berman   /s/ Joel M. Bennett     Stephen G. Berman, President   Joel M. Bennett   Exhibit A Restricted Stock Award Agreement Under the JAKKS Pacific, Inc. 2002 Stock Award and Incentive Plan     This RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”) is entered into effective as of July 17, 2007 by and between Joel Bennett (the "Employee") and JAKKS Pacific, Inc., a Delaware corporation (the “Company”). WITNESSETH: WHEREAS, pursuant to the Company’s 2002 Stock Award and Incentive Plan (the “Plan”), either the Company’s Board of Directors or the Compensation Committee thereof has approved the grant to the Employee of Restricted Stock set forth herein, subject to the terms and conditions of this Agreement. 1. AWARD OF RESTRICTED STOCK       The Company hereby grants to the Employee an award of 15,000 shares of restricted common stock of the Company, par value $.001 per share (the “Restricted Stock”), subject to, and in accordance with, the restrictions, terms, and conditions set forth in this Agreement. The grant date of this award of Restricted Stock is July 17, 2007 (the “Grant Date”). This Agreement shall be construed in accordance with, and subject to, the provisions of the Plan (the provisions of which are incorporated herein by reference) and, except as otherwise expressly set forth herein, the capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan. 2. RESTRICTIONS; FORFEITURE       2.1  Provided in all instances that the Employee’s employment with the Company has not terminated prior to the Final Vesting Date (as defined below), that number of shares of Restricted Stock set forth below shall vest on each listed corresponding date (each such date shall be a "Vesting Date"), such that on December 31, 2010 (the “Final Vesting Date”) all of the shares of Restricted Stock shall be fully vested:     Date Number of Shares Vested         December 31, 2007 5,000 Shares December 31, 2008 5,000 Shares December 31, 2009 5,000 Shares   2.2  On each Vesting Date, the Employee shall own the vested shares of Restricted Stock free and clear of all restrictions imposed by this Agreement (except those restrictions imposed by Section 3.4 below). The Restricted Stock may not be sold, assigned, transferred, pledged, or otherwise encumbered prior to the date, if ever, that the Restricted Stock becomes vested in accordance with the terms of this Agreement. 2.3  In the event the Employee’s employment with the Company has terminated prior to a Vesting Date, (i) the grant of any shares of Restricted Stock pursuant to this Agreement not yet vested shall be null and void, (ii) any entries on the stock books and ledgers of the Company with respect to such forfeited shares of Restricted Stock shall be cancelled, and (iii) the forfeited shares of Restricted Stock shall become authorized but unissued shares of the Company’s common stock.   3. STOCK; DIVIDENDS; VOTING   3.1  The stock certificate(s) evidencing the Restricted Stock shall be registered on the Company's books in the name of the Employee as of the Grant Date. The Company may issue stock certificates or otherwise evidence the Employee’s interest by using a book entry account. The Company may, in its sole discretion, maintain physical possession or custody of such stock certificates until such time as the shares of Restricted Stock are vested in accordance with Article 2. The Company reserves the right to place a legend on the stock certificate(s) restricting the transferability of such certificates and referring to the terms and conditions (including forfeiture) of this Agreement and the Plan. 3.2  During the period the Restricted Stock is not vested, the Employee shall be entitled to receive dividends and/or other distributions declared on such Restricted Stock and the Employee shall be entitled to vote such Restricted Stock. 3.3  In the event of a change in capitalization, the number and class of shares of Restricted Stock or other securities that the Employee shall be entitled to, and shall hold, pursuant to this Agreement shall be appropriately adjusted or changed to reflect such change in capitalization, provided that any such additional shares of Restricted Stock or different shares or securities shall remain subject to the restrictions contained in this Agreement. 3.4  The Employee represents and warrants that he is acquiring the Restricted Stock for investment purposes only, and not with a view to distribution thereof. The Employee is aware that the Restricted Stock may not be registered under the federal or any state securities laws and that, in addition to the other restrictions on the shares of Restricted Stock, the Restricted Stock will not be able to be transferred unless an exemption from registration is available or the Restricted Stock becomes registered. By making this award of Restricted Stock, the Company is not undertaking any obligation to register the Restricted Stock under any federal or state securities laws. 4. NO RIGHT TO CONTINUED SERVICE AS AN EMPLOYEE         Nothing in this Agreement or the Plan shall be interpreted or construed to confer upon the Employee any right with respect to continuance as an employee of the Company or any subsidiary of the Company. 5. TAXES AND WITHHOLDING The Employee shall be responsible for all federal, state, and local income taxes payable with respect to this award of Restricted Stock. The Employee shall have the right to make such elections under the Code as are available in connection with this award of Restricted Stock. The Company and the Employee agree to report the value of the Restricted Stock in a consistent manner for federal income tax purposes. The Company shall have the right to retain and withhold from any payment of Restricted Stock the amount of taxes (if any) required by any government to be withheld or otherwise deducted and paid with respect to such payment. At its discretion, the Company may require the Employee to reimburse the Company for any such taxes required to be withheld and may withhold any distribution in whole or in part until the Company is so reimbursed. In lieu thereof, the Company shall have the right to withhold from any other cash amounts due to the Employee an amount equal to such taxes required to be withheld or withhold and cancel (in whole or in part) a number of shares of Restricted Stock having a market value not less than the amount of such taxes. 6. EMPLOYEE BOUND BY THE PLAN The Employee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof. 7. MODIFICATION OF AGREEMENT This Agreement may be modified, amended, suspended, or terminated, or any of the terms or conditions hereof waived, only by a written instrument executed by the parties hereto. 8. SEVERABILITY         Should any provision of this Agreement be held by a court of competent jurisdiction to be unenforceable or invalid for any reason, the remaining provisions of this Agreement shall not be affected by such holding and shall continue in full force in accordance with their terms.   9. GOVERNING LAW The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of Delaware without giving effect to the conflicts of laws principles thereof. 10. SUCCESSORS IN INTEREST This Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns, whether by merger, consolidation, reorganization, sale of assets, or otherwise. This Agreement shall inure to the benefit of the Employee’s legal representatives. All obligations imposed upon the Employee and all rights granted to the Company under this Agreement shall be final, binding, and conclusive upon the Employee’s heirs, executors, administrators, and successors. 11. RESOLUTION OF DISPUTES Any dispute or disagreement which may arise under, or as a result of, or in any way relate to the interpretation, construction, or application of this Agreement shall be determined by the Board. Any determination made hereunder shall be final, binding, and conclusive on the Employee and the Company for all purposes. 12.  RESTRICTIVE COVENANTS In consideration of the Restricted Stock granted to the Employee pursuant to the Plan and to induce the Company to grant the Employee such Restricted Stock, the Employee hereby agrees as follows:   (i)  Definitions.  As used in this Section 12, the following terms shall have the meanings ascribed to them in this subsection:   “Business” shall mean the business of designing, developing, marketing, selling and/or distributing children's toys and games.   “Competitive Company” shall mean any person, corporation, association, joint venture, partnership, or other business entity that engages in any part of the Business in competition with the Company.   “Restrictive Period” shall mean a period of one year following the Employee’s voluntary termination of employment with the Company or the termination of the Employee’s employment with the Company for cause; provided, however, that the Restrictive Period shall be extended for an additional period equal to any period during which the Employee is in violation of any of the provisions of Section 12(iv) below.   “Territory” shall mean the entire world.   (ii)  Acknowledgements.  The Employee acknowledges that by reason of the Employee’s position with the Company the Employee is and will be acquainted with confidential and privileged information relating to customer files and special customer information, vendor sources and information, licenses, product lines, intellectual property (including, but not limited to, patents, trademarks and copyrights), financings, mergers, acquisitions, selective personnel information and confidential processes, designs, ideas, plans, devices and materials, and other similar matters treated by the Company as confidential (the "Confidential Information") and that use of the Confidential Information might seriously damage the Company in the operation of the Business.   (iii)  Nondisclosure. The Employee agrees not to divulge, furnish, or make accessible to any third person, company or other organization or entity (other than in the regular course of the Company's Business) any Confidential Information, without the prior written consent of the Company; provided, however, that such covenant will not apply to any Confidential Information that was known by the Employee prior to the Company's disclosure thereof to the Employee, that is or becomes through no fault of the Employee generally available to the public, or that is independently developed and supplied to the Employee by a source other than the Company.   (iv)  Covenant Not to Compete.  The Employee hereby agrees that during the continuation of the Employee’s employment with the Company and during the Restrictive Period, the Employee will not, directly or indirectly, within the Territory:   (1)  own, manage, operate, control, be employed by, render advisory services to, support or assist (by loans or otherwise), participate in or be connected in the management or control of any Competitive Company, unless the Employee’s affiliation with such Competitive Company is not related in any way, directly or indirectly, to the sale or marketing of products or the provision of services that are of the same kind or a like nature as those products sold or services provided by the Company at the time the Employee’s employment with the Company terminates; or   (2)  solicit or attempt in any manner to persuade or influence any present or future customer of the Company to divert its business from the Company to any Competitive Company.   (v)  Enforcement.  The Employee hereby agrees that in the event of any breach or threatened breach by the Employee of any of the foregoing covenants, the Company, in addition to any other rights and remedies it may have, will be entitled to an injunction restraining such breach or threatened breach, and the Employee hereby agrees to stipulate that a breach by the Employee would cause irreparable damage to the Company and that its remedies at law would be inadequate. The Employee further agrees that the existence of any claim or cause of action on the part of the Employee against the Company shall not constitute a defense to the enforcement of these provisions and that the terms of the foregoing covenants, including without limitation the Restrictive Period and the Territory, are reasonable in all respects and necessary for the protection of the Company. If any court of competent jurisdiction will finally adjudicate that any of the covenants are too broad as to area, activity or time covered, the Employee agrees that such area, activity or time covered may be reduced to whatever extent such court deems reasonable and the covenants and the remedy of injunctive relief may be enforced as to such reduced area, activity or time.   first above written.     JOEL BENNETT                       By: /s/ Stephen Berman   /s/ Joel Bennett     Stephen Berman, President        

  Exhibit 10.1   SECOND AMENDMENT AGREEMENT   THIS SECOND AMENDMENT AGREEMENT is entered into as of the 13th day of December, 2013 between MANHATTAN BRIDGE CAPITAL, INC., with offices at 60 Cutter Mill Road, Great Neck, New York 11021 (hereinafter “Borrower”), ASSAF RAN, residing at 37 Hawthorne Lane, Great Neck, New York 11023, (“Guarantor”) and STERLING NATIONAL BANK, having an office at 650 Fifth Avenue, Fourth Floor, New York, New York 10022 (“Lender”).   WITNESSETH   WHEREAS, Lender is the owner and holder of a certain Revolving Credit Line Note in the original principal amount of up to $3,500,000.00 dated May 2, 2012 executed and delivered by Borrower to Lender evidencing a loan or advances of up to $3,500,000.00 which may be made from time to time by Lender to Borrower which advances will be made pursuant to the terms and conditions of a certain Revolving Line of Credit Loan Agreement (the “Loan Agreement”) also dated May 2, 2012; and   WHEREAS, by Amendment Agreement dated January 31, 2013 (the “First Amendment”), availability was increased to $5,000,000.00 (as increased, the “Loan”) and the Maturity Date of the Note was extended until July 1, 2014 (the Revolving Credit Line Note, as modified by the First Amendment being the “Note”), and the “Pledge” and the “Guaranty” were also amended to reflect the increased availability under the Loan;   WHEREAS, the Note is secured by a Pledge and Security Agreement dated as of May 2, 2012 (the “Pledge”) pursuant to which Borrower pledged and assigned to Lender certain “Collateral” as defined in the Pledge,   WHEREAS, all obligations and liabilities of Borrower under the Note and Pledge have been absolutely and unconditionally guaranteed pursuant to Guaranty of Payment executed by the Guarantor to Lender dated May 2, 2012 (the “Guaranty”) (the Note, Loan Agreement, Pledge, Guaranty, and all other documents executed or delivered in connection with the Loan are hereinafter referred to as the “Loan Documents”),   WHEREAS, there is now due and owing on the Note and secured by the Pledge an unpaid principal balance of FIVE MILLION and 00/100 ($5,000,000.00) DOLLARS,         WHEREAS, Borrower has requested that Lender increase the amount of the Loan by an additional $2,000,000.00 and that such increase be evidenced by the Note and be secured by the Pledge and all other Loan Documents,   WHEREAS, Lender is willing to consent to such request, but only on the following terms and conditions,   NOW, in consideration of Ten ($10.00) Dollars good and valuable consideration the receipt and adequacy of which is hereby acknowledged, it is hereby understood and agreed as follows:   1.            Ratification of the Loan. Borrower and Guarantor represent, warrant and agree with Lender that the unpaid principal balance on the Loan, Note, and Pledge as of the date hereof is $5,000,000.00 without offset, defense or counterclaim of any kind or nature whatsoever.   2.            Additional Loan; Consolidation of Loans; Ratification of Existing Collateral Assignments as Security for Consolidated Loan. Simultaneously herewith, Lender has made an additional revolving facility available to Borrower in the amount of TWO MILLION AND 00/100 ($2,000,000.00) DOLLARS (the “Additional Loan”). Borrower and Guarantor hereby acknowledge and agree that the Loan and the Additional Loan shall be evidenced by the Note, shall be subject to all terms, covenants, and conditions thereof and of the Loan Agreement, and shall be secured by the Pledge and the other Loan Documents. The Loan and the Additional Loan are hereby deemed consolidated for all purposes (as so consolidated, the “Consolidated Loan”). Therefore, the unpaid principal balance evidenced by the Note, secured by the Pledge, and which may be advanced pursuant to the Loan Agreement is now up to a maximum principal amount of SEVEN MILLION AND 00/100 ($7,000,000.00) DOLLARS. The Consolidated Loan shall be paid with interest, at the times, and in the manner provided in the Note, all terms, covenants, and conditions of which are deemed incorporated herein by this reference. All future advances of the Consolidated Loan shall be subject to satisfaction of all terms, covenants, and conditions of the Loan Agreement. Notwithstanding the reference in any existing recorded or unrecorded Collateral Assignment of Mortgage made by Borrower to Lender indicating that such Collateral Assignment is security for the Note in the principal amount of up to $5,000,000.00 or any other amount, each and every such existing Collateral Assignment shall be deemed to be, and hereby is, re-assigned to Lender to constitute security for the Consolidated Loan of up to $7,000,000.00.   - 2 -     3.            Increase and Ratification of Guaranty of Payment. In order to induce Lender to enter into this Agreement, Guarantor hereby ratifies and confirms his continuing, absolute, unconditional, liability on the Guaranty which is now agreed to include principal in the amount of $7,000,000.00, interest thereon as provided for in the Note, as well all other “Obligations” as such term is defined in the Guaranty. Guarantor hereby confirms there are no offsets or defenses to the Guaranty, as amended and ratified hereby.   4.            Ratification of Loan Documents. All Loan Documents are hereby ratified and confirmed and, as amended and modified above, continue in full force and effect and are incorporated herein by reference.   In witness thereof, the Lender, Borrower and Guarantor have executed this Agreement as of the date set forth above.     STERLING NATIONAL BANK       By: /s/ JOHN GALLO     JOHN GALLO     Senior Vice President         MANHATTAN BRIDGE CAPITAL, INC.       By: /s/ ASSAF RAN     ASSAF RAN, President           /s/ ASSAF RAN     ASSAF RAN, individually as Guarantor   - 3 -     STATE OF NEW YORK )   ) ss. : COUNTY OF NEW YORK )   On the 13th day of December, 2013, before me personally appeared John Gallo, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.     /s/ RAYMARLIE PAUL   Notary Public       [tlogo.jpg]   STATE OF NEW YORK )   ) ss. : COUNTY OF QUEENS )   On the 11th day of December, 2013 before me personally appeared ASSAF RAN,     /s/ MANSHU VANESSA KAO     Notary Public [tlogo1.jpg]   - 4 -

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-CSR CERTIFIED SHAREHOLDER REPORT OF REGISTERED MANAGEMENT INVESTMENT COMPANIES Investment Company Act file number 811 - 5718 DREYFUS TREASURY PRIME CASH MANAGEMENT (Exact name of Registrant as specified in charter) c/o The Dreyfus Corporation 200 Park Avenue New York, New York 10166 (Address of principal executive offices) (Zip code) John Pak, Esq. 200 Park Avenue New York, New York 10166 (Name and address of agent for service) Registrant's telephone number, including area code: (212) 922-6000 Date of fiscal year end: 1/31 Date of reporting period: 7/31/13 FORM N-CSR Item 1. Reports to Stockholders. The Funds 3 4 The Funds 5 6 UNDERSTANDING YOUR FUND’S EXPENSES (Unaudited) As a mutual fund investor, you pay ongoing expenses, such as management fees and other expenses. Using the information below, you can estimate how these expenses affect your investment and compare them with the expenses of other funds.You also may pay one-time transaction expenses, including sales charges (loads) and redemptions fees, which are not shown in this section and would have resulted in higher total expenses. For more information, see your fund’s prospectus or talk to your financial adviser. Review your fund’s expenses The table below shows the expenses you would have paid on a $1,000 investment in each class of each fund from February 1, 2013 to July 31, 2013. It also shows how much a $1,000 investment would be worth at the close of the period, assuming actual returns and expenses. The Funds 7 UNDERSTANDING YOUR FUND’S EXPENSES (Unaudited) (continued) † Expenses are equal to each fund’s annualized expense ratios as shown above, multiplied by the average account value over the period, multiplied by 181/365 (to reflect the one-half year period). 8 COMPARING YOUR FUND’S EXPENSES WITH THOSE OF OTHER FUNDS (Unaudited) Using the SEC’s method to compare expenses The Securities and Exchange Commission (SEC) has established guidelines to help investors assess fund expenses. Per these guide- lines, the table below shows your fund’s expenses based on a $1,000 investment, assuming a hypothetical 5% annualized return.You can use this information to compare the ongoing expenses (but not transaction expenses or total cost) of investing in the fund with those of other funds. All mutual fund shareholder reports will provide this information to help you make this comparison. Please note that you cannot use this information to estimate your actual ending account balance and expenses paid during the period. The Funds 9 COMPARING YOUR FUND’S EXPENSES WITH THOSE OF OTHER FUNDS (Unaudited) (continued) † Expenses are equal to each fund’s annualized expense ratios as shown above, multiplied by the average account value over the period, multiplied by 181/365 (to reflect the one-half year period). 10 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) The Funds 11 STATEMENT OF INVESTMENTS (Unaudited) (continued) 12 a Variable rate security—interest rate subject to periodic change. b Securities exempt from registration pursuant to Rule 144A under the Securities Act of 1933.These securities may be resold in transactions exempt from registration, normally to qualified institutional buyers.At July 31, 2013, these securities amounted to $5,699,756,438 or 21.7% of net assets. † Based on net assets. See notes to financial statements. The Funds 13 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) 14 The Funds 15 STATEMENT OF INVESTMENTS (Unaudited) (continued) 16 a Variable rate security—interest rate subject to periodic change. b The Federal Housing Finance Agency (“FHFA”) placed Federal Home Loan Mortgage Corporation and Federal National Mortgage Association into conservatorship with FHFA as the conservator.As such, the FHFA oversees the continuing affairs of these companies. † Based on net assets. See notes to financial statements. The Funds 17 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) 18 a Variable rate security—interest rate subject to periodic change. † Based on net assets. See notes to financial statements. The Funds 19 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) 20 The Funds 21 STATEMENT OF INVESTMENTS (Unaudited) (continued) † Based on net assets. See notes to financial statements. 22 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) The Funds 23 STATEMENT OF INVESTMENTS (Unaudited) (continued) † Based on net assets. See notes to financial statements. 24 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) The Funds 25 STATEMENT OF INVESTMENTS (Unaudited) (continued) 26 The Funds 27 STATEMENT OF INVESTMENTS (Unaudited) (continued) 28 a Variable rate demand note—rate shown is the interest rate in effect at July 31, 2013. Maturity date represents the next demand date, or the ultimate maturity date if earlier. b Securities exempt from registration pursuant to Rule 144A under the Securities Act of 1933.These securities may be resold in transactions exempt from registration, normally to qualified institutional buyers.At July 31, 2013, these securities amounted to $42,590,000 or 10.4% of net assets. c The fund does not directly own the municipal security indicated; the fund owns an interest in a special purpose entity that, in turn, owns the underlying municipal security.The special purpose entity permits the fund to own interests in underlying assets, but in a manner structured to provide certain advantages not inherent in the underlying bonds (e.g., enhanced liquidity, yields linked to short-term rates). The Funds 29 STATEMENT OF INVESTMENTS (Unaudited) (continued) † Based on total investments. d Notes which are not F, MIG and SP rated are represented by bond ratings of the issuers. e Securities which, while not rated by Fitch, Moody’s and Standard & Poor’s, have been determined by the Manager to be of comparable quality to those rated securities in which the fund may invest. See notes to financial statements. 30 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) The Funds 31 STATEMENT OF INVESTMENTS (Unaudited) (continued) 32 a Variable rate demand note—rate shown is the interest rate in effect at July 31, 2013. Maturity date represents the next demand date, or the ultimate maturity date if earlier. b Securities exempt from registration pursuant to Rule 144A under the Securities Act of 1933.These securities may be resold in transactions exempt from registration, normally to qualified institutional buyers.At July 31, 2013, these securities amounted to $40,040,000 or 9.8% of net assets. c The fund does not directly own the municipal security indicated; the fund owns an interest in a special purpose entity that, in turn, owns the underlying municipal security.The special purpose entity permits the fund to own interests in underlying assets, but in a manner structured to provide certain advantages not inherent in the underlying bonds (e.g., enhanced liquidity, yields linked to short-term rates). d At July 31, 2013, the fund had $125,770,000 or 30.8% of net assets invested in securities whose payment of principal and interest is dependent upon revenues generated from housing. The Funds 33 STATEMENT OF INVESTMENTS (Unaudited) (continued) † Based on total investments. e Notes which are not F, MIG and SP rated are represented by bond ratings of the issuers. f Securities which, while not rated by Fitch, Moody’s and Standard & Poor’s, have been determined by the Manager to be of comparable quality to those rated securities in which the fund may invest. See notes to financial statements. 34 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) The Funds 35 STATEMENT OF INVESTMENTS (Unaudited) (continued) 36 The Funds 37 STATEMENT OF INVESTMENTS (Unaudited) (continued) 38 The Funds 39 STATEMENT OF INVESTMENTS (Unaudited) (continued) 40 The Funds 41 STATEMENT OF INVESTMENTS (Unaudited) (continued) 42 a Variable rate demand note—rate shown is the interest rate in effect at July 31, 2013. Maturity date represents the next demand date, or the ultimate maturity date if earlier. b Securities exempt from registration pursuant to Rule 144A under the Securities Act of 1933.These securities may be resold in transactions exempt from registration, normally to qualified institutional buyers.At July 31, 2013, these securities amounted to $272,400,000 or 13.4% of net assets. c At July 31, 2013, the fund had $570,195,000 or 28.1% of net assets invested in securities whose payment of principal and interest is dependent upon revenues generated from health care. d The fund does not directly own the municipal security indicated; the fund owns an interest in a special purpose entity that, in turn, owns the underlying municipal security.The special purpose entity permits the fund to own interests in underlying assets, but in a manner structured to provide certain advantages not inherent in the underlying bonds (e.g., enhanced liquidity, yields linked to short-term rates). The Funds 43 STATEMENT OF INVESTMENTS (Unaudited) (continued) † Based on total investments. e Notes which are not F, MIG and SP rated are represented by bond ratings of the issuers f Securities which, while not rated by Fitch, Moody’s and Standard & Poor’s, have been determined by the Manager to be of comparable quality to those rated securities in which the fund may invest. See notes to financial statements. 44 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) The Funds 45 STATEMENT OF INVESTMENTS (Unaudited) (continued) 46 The Funds 47 STATEMENT OF INVESTMENTS (Unaudited) (continued) a Variable rate demand note—rate shown is the interest rate in effect at July 31, 2013. Maturity date represents the next demand date, or the ultimate maturity date if earlier. b Securities exempt from registration pursuant to Rule 144A under the Securities Act of 1933.These securities may be resold in transactions exempt from registration, normally to qualified institutional buyers.At July 31, 2013, these securities amounted to $56,420,000 or 13.9% of net assets. c The fund does not directly own the municipal security indicated; the fund owns an interest in a special purpose entity that, in turn, owns the underlying municipal security.The special purpose entity permits the fund to own interests in underlying assets, but in a manner structured to provide certain advantages not inherent in the underlying bonds (e.g., enhanced liquidity, yields linked to short-term rates). 48 † Based on total investments. d Notes which are not F, MIG and SP rated are represented by bond ratings of the issuers. See notes to financial statements. The Funds 49 STATEMENT OF INVESTMENTS July 31, 2013 (Unaudited) 50 The Funds 51 STATEMENT OF INVESTMENTS (Unaudited) (continued) a Variable rate demand note—rate shown is the interest rate in effect at July 31, 2013. Maturity date represents the next demand date, or the ultimate maturity date if earlier. b Securities exempt from registration pursuant to Rule 144A under the Securities Act of 1933.These securities may be resold in transactions exempt from registration, normally to qualified institutional buyers.At July 31, 2013, these securities amounted to $4,000,000 or 3.4% of net assets. c The fund does not directly own the municipal security indicated; the fund owns an interest in a special purpose entity that, in turn, owns the underlying municipal security.The special purpose entity permits the fund to own interests in underlying assets, but in a manner structured to provide certain advantages not inherent in the underlying bonds (e.g., enhanced liquidity, yields linked to short-term rates). 52 † Based on total investments. d Securities which, while not rated by Fitch, Moody’s and Standard & Poor’s, have been determined by the Manager to be of comparable quality to those rated securities in which the fund may invest. See notes to financial statements. The Funds 53 STATEMENTS OF ASSETS AND LIABILITIES (amounts in thousands, except Net Asset Value Per Share) July 31, 2013 (Unaudited) 54 a Amount includes repurchase agreements of $2,475,000,000, $5,620,000,000 and $8,309,000,000 for Dreyfus Cash Management, Dreyfus Government Cash Management and Dreyfus Treasury & Agency Cash Management, respectively, See Note 1(c). See notes to financial statements. The Funds 55 STATEMENTS OF ASSETS AND LIABILITIES (continued) (amounts in thousands, except Net Asset Value Per Share) July 31, 2013 (Unaudited) See notes to financial statements. 56 STATEMENTS OF OPERATIONS (amounts in thousands) Six Months Ended July 31, 2013 (Unaudited) a Amount represents less than $1,000. See notes to financial statements. The Funds 57 STATEMENTS OF OPERATIONS (continued) (amounts in thousands) Six Months Ended July 31, 2013 (Unaudited) a Amount represents less than $1,000. See notes to financial statements. 58 STATEMENTS OF CHANGES IN NET ASSETS (amounts in thousands) a Amount represents less than $1,000. See notes to financial statements. The Funds 59 STATEMENTS OF CHANGES IN NET ASSETS (continued) (amounts in thousands) a Amount represents less than $1,000. See notes to financial statements. 60 a Amount represents less than $1,000. See notes to financial statements. The Funds 61 STATEMENTS OF CHANGES IN NET ASSETS (continued) (amounts in thousands) a Amount represents less than $1,000. b Effective September 14, 2012, Dreyfus NewYork Municipal Cash Management had terminated its Agency Shares. See notes to financial statements. 62 a Amount represents less than $1,000. b Effective September 14, 2012, Dreyfus NewYork AMT-Free Municipal Cash Management had terminated its Participant Shares. c Effective September 14, 2012, Dreyfus California AMT-Free Municipal Cash Management had terminated its Agency Shares. See notes to financial statements. The Funds 63 FINANCIAL HIGHLIGHTS (Unaudited) The following tables describe the performance for each share class of each fund for the fiscal periods indicated.All information reflects financial results for a single fund share.Total return shows how much your investment in each fund would have increased (or decreased) during each period, assuming you had reinvested all dividends and distributions.These figures have been derived from the funds’ financial statements. Please note that the financial highlights information in the following tables for Dreyfus NewYork AMT-Free Municipal Cash Management’s Institutional, Investor and Classic shares represents the financial highlights of Dreyfus New York AMT-Free Municipal Cash Management’s predecessor, BNY Hamilton New York AMT-Free Municipal Money Fund (New York AMT-Free Municipal Money Fund), before Dreyfus New York AMT-Free Municipal Cash Management commenced operations as of the close of business on September 12, 2008, and represents the performance of Dreyfus NewYork AMT-Free Municipal Cash Management’s Institutional, Investor and Classic shares thereafter. Before Dreyfus NewYork AMT-Free Municipal Cash Management commenced operations, all of the assets of the New York AMT-Free Municipal Money Fund were transferred to Dreyfus New York AMT-Free Municipal Cash Management in exchange for Institutional, Investor and Classic shares of the fund in a tax-free reorganization.Total return shows how much your investment in Dreyfus NewYork AMT-Free Municipal Cash Management would have increased (or decreased) during each period, assuming you had reinvested all dividends and distributions.These figures have been derived from Dreyfus NewYork AMT-Free Municipal Cash Management’s predecessor’s financial statements. a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. See notes to financial statements. 64 a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. See notes to financial statements. The Funds 65 FINANCIAL HIGHLIGHTS (continued) a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. See notes to financial statements. 66 a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. See notes to financial statements. The Funds 67 FINANCIAL HIGHLIGHTS (continued) a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. See notes to financial statements. 68 a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. d Amount represents less than $1 million. See notes to financial statements. The Funds 69 FINANCIAL HIGHLIGHTS (continued) a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. See notes to financial statements. 70 a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. See notes to financial statements. The Funds 71 FINANCIAL HIGHLIGHTS (continued) a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. d Amount represents less than $1 million. See notes to financial statements. 72 The Funds 73 FINANCIAL HIGHLIGHTS (continued) † Represents information for the fund’s predecessor, NewYork AMT-Free Municipal Money Fund through September 12, 2008. a Amount represents less than $.001 per share. b Annualized. c Amount represents less than .01%. d The fund has changed its fiscal year end from December 31 to January 31. e Not annualized. f Amount represents less than $1 million. g From September 13, 2008 (commencement of initial offering) to December 31, 2008. See notes to financial statements. 74 NOTES TO FINANCIAL STATEMENTS (Unaudited) The Funds 75 NOTES TO FINANCIAL STATEMENTS (Unaudited) (continued) 76 The Funds 77 NOTES TO FINANCIAL STATEMENTS (Unaudited) (continued) † If not applied, the carryover expires in the above fiscal year. †† Post-enactment short-term capital losses that can be carried forward for an unlimited period. † Amount represents less than $1,000. 78 The Funds 79 NOTES TO FINANCIAL STATEMENTS (Unaudited) (continued) 80 The Funds 81 NOTES TO FINANCIAL STATEMENTS (Unaudited) (continued) 82 The Funds 83 INFORMATION ABOUT THE RENEWAL OF EACH FUND’S MANAGEMENT AGREEMENT (Unaudited) 84 The Funds 85 INFORMATION ABOUT THE RENEWAL OF EACH FUND’S MANAGEMENT AGREEMENT (Unaudited) (continued) 86 The Funds 87 INFORMATION ABOUT THE RENEWAL OF EACH FUND’S MANAGEMENT AGREEMENT (Unaudited) (continued) 88 The Funds 89 INFORMATION ABOUT THE RENEWAL OF EACH FUND’S MANAGEMENT AGREEMENT (Unaudited) (continued) 90 The Funds 91 Item 2. Code of Ethics. Not applicable. Item 3. Audit Committee Financial Expert. Not applicable. Item 4. Principal Accountant Fees and Services. Not applicable. Item 5. Audit Committee of Listed Registrants. Not applicable. Item 6. Investments. (a) Not applicable. Item 7. Disclosure of Proxy Voting Policies and Procedures for Closed-End Management Investment Companies. Not applicable. Item 8. Portfolio Managers of Closed-End Management Investment Companies. Not applicable. Item 9. Purchases of Equity Securities by Closed-End Management Investment Companies and Affiliated Purchasers. Not applicable. [CLOSED END FUNDS ONLY] Item 10. Submission of Matters to a Vote of Security Holders. There have been no material changes to the procedures applicable to Item 10. Item 11. Controls and Procedures. (a) The Registrant's principal executive and principal financial officers have concluded, based on their evaluation of the Registrant's disclosure controls and procedures as of a date within 90 days of the filing date of this report, that the Registrant's disclosure controls and procedures are reasonably designed to ensure that information required to be disclosed by the Registrant on Form N-CSR is recorded, processed, summarized and reported within the required time periods and that information required to be disclosed by the Registrant in the reports that it files or submits on Form N-CSR is accumulated and communicated to the Registrant's management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure. (b) There were no changes to the Registrant's internal control over financial reporting that occurred during the second fiscal quarter of the period covered by this report that have materially affected, or are reasonably likely to materially affect, the Registrant's internal control over financial reporting. Item 12. Exhibits. (a)(1) Not applicable. (a)(2) Certifications of principal executive and principal financial officers as required by Rule 30a-2(a) under the Investment Company Act of 1940. (a)(3) Not applicable. (b) Certification of principal executive and principal financial officers as required by Rule 30a-2(b) under the Investment Company Act of 1940. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized. DREYFUS TREASURY PRIME CASH MANAGEMENT By: /s/ Bradley J. Skapyak Bradley J. Skapyak, President Date: September 25, 2013 Pursuant to the requirements of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, this Report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated. By: /s/ Bradley J. Skapyak Bradley J. Skapyak, President Date: September 25, 2013 By: /s/ James Windels James Windels, Treasurer Date: September 25, 2013 EXHIBIT INDEX (a)(2) Certifications of principal executive and principal financial officers as required by Rule 30a-2(a) under the Investment Company Act of 1940. (EX-99.CERT) (b) Certification of principal executive and principal financial officers as required by Rule 30a-2(b) under the Investment Company Act of 1940. (EX-99.906CERT)

Redfield Ventures, Inc 244 Fifth Ave Ste #1563 New York, NY 10001 Tel: 212-726-2184 www.redfieldventures.com December 14, 2012 Securities and Exchange Commission Division of Corporate Finance treet, N.E. Washington DC 20549 Attention: Larry Spirgel, Assistant Director Gregory Dundas, Attorney-Advisor Kathryn Jacobson, Staff Accountant Robert Littlepage, Accountant Branch Chief Re: Redfield Ventures, Inc Registration Statement on Form S-1 File No. 333-183502 Request for Acceleration of Effectiveness Dear Sir/Madam: Pursuant to Rule461 promulgated under the Securities Act of 1933, as amended, Redfield Ventures,Inc. (the “Registrant”) hereby requests acceleration of the effective date of its Registration Statement on FormS-1 (File No.333-183502), as amended (the “Registration Statement”), so that it may become effective at 4.00 p.m. Eastern Daylight Time on December19, 2012, or as soon as practicable thereafter. The Registrant hereby acknowledges that: (i)should the Securities and Exchange Commission (the “Commission”) or the staff, acting pursuant to delegated authority, declare the Registration Statement effective, it does not foreclose the Commission from taking any action with respect to the Registration Statement; (ii)the action of the Commission or the staff, acting pursuant to delegated authority, in declaring the Registration Statement effective, does not relieve the Registrant from its full responsibility for the adequacy and accuracy of the disclosure in the Registration Statement; and (iii)the Registrant may not assert comments of the Commission or the staff and the declaration of effectiveness of the Registration Statement as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. We request that we be notified of such effectiveness by a telephone call to the undersigned at (206)359-8649, or in his absence, Khoo Hsiang Hua, Secretary at (917)720-3390. Sincerely, REDFIELD VENTURES, INC /s/ Long Nguyen Long Nguyen Chief Executive Officer

Exhibit 99 FOR IMMEDIATE RELEASE RPC, Inc. to Present at Lehman Brothers CEO Energy/Power Conference ATLANTA, August 26, 2008 RPC Incorporated (NYSE: RES) announced today that it will present at the Lehman Brothers CEO Energy/Power Conference in New York on September 2, 2008 at 1:40 p.m. Eastern Daylight Time. The presentation will provide a corporate overview, highlight the services RPC provides and discuss the most recently published financial results.Management's remarks will be available in real time directly from Lehman Brothers CEO Energy/Power Conference or from RPC’s investor website, http://www.rpc.net for a period of 30 days following the presentation. RPC, an oil and gas services company, provides a broad range of specialized oilfield services and equipment primarily to independent and major oilfield companies engaged in the exploration, production and development of oil and gas properties throughout the United States, including the Gulf of Mexico, mid-continent, southwest and Rocky Mountain regions, and in selected international markets.RPC’s investor Web site can be found on the Internet at http://www.rpc.net. For more information about RPC, Inc. and/ or this presentation, please contact: Jim Landers V.P.

Exhibit 10.1 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (“Agreement”), dated the 14th day of December, 2006 (“Effective Date”), is made by and between SCPIE Holdings Inc., a Delaware corporation (“SCPIE”), on the one hand, and Joseph Stilwell, Stilwell Value LLC and Stilwell Value Partners III, L.P. (collectively, the “Stilwell Group”), on the other hand. WHEREAS, SCPIE and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement, among other things, to set forth certain agreements concerning SCPIE’s 2007 Annual Meeting of Stockholders (including all adjournments or postponements thereof (the “2007 Annual Meeting”)), as hereinafter described. warranties, and agreements contained herein, and other good and valuable consideration, the parties hereto mutually agree as follows: 1. Representations and Warranties of Stilwell Group. The Stilwell Group hereby represents and warrants to SCPIE as follows: a. The Stilwell Group has beneficial ownership of 847,400 shares of common stock of SCPIE and has full and complete authority to enter into this Agreement and to bind the entire number of shares of the common stock of SCPIE which it holds, or may hold, including any shares purchased in the future, to the terms of this Agreement. This Agreement constitutes a valid and binding agreement of the Stilwell Group. No “affiliate” or “associate” (as such terms are defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the Stilwell Group beneficially owns any shares or rights to acquire shares of common stock of SCPIE. b. There are no arrangements, agreements or understandings between the Stilwell Group and SCPIE other than as set forth in this Agreement. 2. Representations and Warranties of SCPIE. SCPIE hereby represents and warrants to the Stilwell Group, as follows: a. SCPIE has full power and authority to enter into and perform its obligations under this Agreement, and the execution and delivery of this Agreement by SCPIE has been duly authorized by the Board of Directors of SCPIE and requires no further Board of Directors or stockholder action. The Board of Directors of SCPIE may be referred to hereinafter as the “Board”. This Agreement constitutes a valid and binding obligation of SCPIE and the performance of its terms does not constitute a violation of its certificate of incorporation or by-laws.   1 3. Stilwell Group’s Prohibited Conduct. No member of the Stilwell Group or any of their affiliates, associates or other persons acting in concert with them, shall, directly or indirectly, a. solicit (as such term is used in the proxy rules of the Securities and Exchange Commission) proxies or consents, or participate in any manner in the solicitation of proxies or consents, from SCPIE’s stockholders to elect persons to the Board or to approve shareholder proposals, b. make any public statement critical of SCPIE, or its Directors or management, or in favor of any proposal opposed by the Board, c. initiate any litigation against SCPIE or any of its Directors or officers, except to enforce the terms of this Agreement, and duties arising out of their services as Directors, d. make or be the proponent of any shareholder proposal, whether pursuant to Rule 14a-8 of the Exchange Act or otherwise, e. acquire, offer or propose to acquire, or agree to acquire (except, in any case, by way of stock dividends or other distributions or offerings made available to holders of SCPIE common stock generally), directly or indirectly, or retain ownership of any SCPIE common stock, if when taken together with the SCPIE common stock beneficially owned by the Stilwell Group would constitute more than 9.9% of the then outstanding shares of SCPIE; provided that “beneficial ownership” shall have the meaning ascribed thereto under Section 13(d) of the Exchange Act, f. make any public announcement with respect to any proposal or offer involving, or propose to enter into, or assist or encourage any other person with respect to, directly or indirectly, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving SCPIE, or to propose as a Director any of the foregoing types of transactions, g. form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to SCPIE common stock, h. deposit any SCPIE common stock in any voting trust or subject any SCPIE common stock to any arrangement or agreement with respect to the voting of any SCPIE common stock, i. execute any written consent as stockholders with respect to SCPIE or its common stock, except as set forth herein, j. otherwise act, alone or in concert with others, to control or seek to control or influence or seek to influence the stockholders, management, the Board or policies of SCPIE, other than through non-public communications with the Directors of SCPIE; provided, that, subject to clause (f) above, nothing herein shall limit Joseph Stilwell from acting in his capacity as a Director of SCPIE in accordance   2 with his fiduciary duties at any meeting of the Board, including his ability to discuss and vote upon the items in clause (f) above, k. seek, alone or in concert with others, (i) to call a meeting of stockholders, (ii) representation on the Board of SCPIE or its subsidiaries, except as set forth herein, or (iii) the removal of any member of the SCPIE Board or any of its subsidiaries, except if any such action mentioned in this clause (k) is approved by the SCPIE Board as a result of a majority vote of the Directors other than Stilwell, l. make any publicly disclosed proposal regarding any of the foregoing, m. publicly make any request to amend, waive or terminate any provision of this Agreement, n. advise, finance, assist or encourage any other person or entity in connection with any of the foregoing, or o. otherwise take, or cause others to take, any action inconsistent with any of the foregoing. 4. Voting at Meetings of Stockholders. The Stilwell Group shall vote all of the shares of SCPIE common stock beneficially owned by its members for each of SCPIE’s nominees for election to the SCPIE Board and, in other matters, in accordance with the recommendation of the SCPIE Board, or, if so directed by the Board, pro rata with all other stockholders. 5. Directorships and Committees. SCPIE agrees that Joseph Stilwell (“Stilwell”) will be appointed to the Board of SCPIE, effective January 15, 2007, and in accordance with the following terms: a. Stilwell will be appointed to the Class of Directors of SCPIE whose terms expire at the 2007 Annual Meeting and to the Strategic Planning Committee of the SCPIE Board. b. Stilwell will be entitled to receive the identical compensation and benefits being paid to the other non-employee Directors of SCPIE. c. No member of the Stilwell Group shall accept any incentive or compensation that would influence any member of the Stilwell Group to recommend that SCPIE enter into a transaction for the sale of SCPIE or to recommend any other significant initiative affecting SCPIE and its stockholders. For purposes of this subparagraph 5(c), neither an increase in the value of the Stilwell Group’s holdings in SCPIE shares nor any fees earned by Stilwell in connection with managing his limited partnerships shall constitute an incentive or compensation hereunder. d. SCPIE and its Board agree to nominate and support Stilwell for re-election to the Board of SCPIE at the 2007 Annual Meeting for a term that expires at the 2010 Annual Meeting of Stockholders. 6. Litigation. During the term of this Agreement, SCPIE will not, directly or indirectly, initiate any litigation against the Stilwell Group, except to   3 enforce the terms of this Agreement and duties arising out of Stilwell’s service as a Director. 7. Dispositions. The Stilwell Group agrees that any disposition of shares of common stock of SCPIE will be made in open market transactions in a manner designed to effect an orderly disposition of such shares. The Stilwell Group further agrees that it will not transfer or dispose of any shares of SCPIE common stock if, as a result of such disposition or transfer, to the knowledge of any member of the Stilwell Group, the person making such acquisition will beneficially own, together with its affiliates and any member of a “group” (within the meaning of the Exchange Act) in which such acquiror is a party, immediately following such acquisition, 5% or more of the SCPIE common stock then outstanding. 8. Certification of Ownership. The Stilwell Group shall, upon request of SCPIE, certify to SCPIE as to the amount of shares it beneficially owns. 9. Termination. a. This Agreement shall terminate and Stilwell shall immediately tender his resignation from the Board of SCPIE, if requested by the Board of SCPIE as a result of a majority vote of the Directors other than Stilwell in favor of such resignation by the Board of SCPIE, upon the earliest of (i) the Stilwell Group having beneficial ownership of less than five percent of the outstanding shares of common stock of SCPIE; (ii) any person becoming the beneficial owner of more than 50% of SCPIE’s voting stock, including as a result of any merger, acquisition or other type of business combination; (iii) the death or incapacity of Joseph Stilwell; (iv) the third anniversary of the Effective Date; and (v) the dissolution, merger or any other transaction which results in the failure of Stilwell Value LLC or Stilwell Value Partners III, L.P. to exist as a legal entity; provided that, with respect to the preceding clause (v), at the option of SCPIE, this Agreement shall be binding on their respective successors and it shall be a condition of such dissolution or other transaction that such successor so agree. b. This Agreement shall terminate if Stilwell resigns from the Board. If Stilwell resigns from the Board prior to January 1, 2008, then, notwithstanding the provisions of paragraph 3(k)(ii), the Stilwell Group shall not be precluded hereunder from duly noticing an intent to nominate Directors for SCPIE’s 2008 Annual Meeting of Stockholders, if the deadline for such notice falls before January 1, 2008. c. If this Agreement terminates prior to January 1, 2008, then paragraphs 3, 4 and 12 through 24 shall survive and remain effective until January 1, 2008. d. If Stilwell is required to resign from the Board pursuant to sub-paragraph 9(a), then any public announcement of such resignation by the parties hereto shall state that such resignation is being tendered pursuant to the terms hereof and not as a result of any disagreement with the Board or management of SCPIE. Notwithstanding the foregoing sub-paragraph 9(a), the Stilwell Group’s obligations under this paragraph 9 shall not be triggered if it becomes the beneficial owner of less than five percent of the outstanding common stock of SCPIE as the result of an   4 issuance of common stock by SCPIE which, by increasing the number of shares outstanding, decreases the proportionate number of shares beneficially owned by the Stilwell Group; provided, however, that if the Stilwell Group shall become the beneficial owner of less than five percent of the common stock of SCPIE then outstanding by reason of a share issuance by SCPIE and shall, after such share issuance by SCPIE, sell or dispose of a proportionate amount of SCPIE common stock that would have otherwise lowered the Stilwell Group’s percentage ownership of SCPIE to less than 5% of the number of shares of common stock of SCPIE outstanding as of the Effective Date, then the Stilwell Group’s obligations under this paragraph 9 shall be triggered. e. The Stilwell Group hereby forever waives and releases, and covenants not to sue, any of SCPIE’s current Directors or current Officers, for any claim or cause of action based on any act, omission, or failure to act by SCPIE’s current Directors or current Officers, which occurred prior to the Effective Date, however, this waiver and release and covenant not to sue does not include the right to sue to enforce the terms of this Agreement and does not extend to acts which are criminal. The Stilwell Group is not aware of the existence of any claims it currently possesses against SCPIE. The Stilwell Group also agrees that no member of the Stilwell Group will make any public statement which directly or indirectly impugns the character, integrity or personal reputation of any of SCPIE’s current Directors. The release contained above shall survive the termination of the Agreement. 10. Public Announcement. The parties shall promptly disclose the existence of this Agreement after its execution pursuant to a joint press release in a form reasonably satisfactory to Stilwell; provided, however, neither party shall disclose the existence of this Agreement until the press release is issued. Stilwell shall be deemed to have approved and consented to the public disclosure of the press release attached hereto as Attachment A for all purposes under this Agreement. 11. Material Nonpublic Information. In connection with this Agreement and the Stilwell Group’s ongoing relationship with SCPIE, there may be instances in which material nonpublic information concerning SCPIE will be divulged to members of the Stilwell Group or its affiliates or associates who are not at that time members of the SCPIE Board by SCPIE, Stilwell or other SCPIE representatives or agents. The Stilwell Group expressly acknowledges that federal and state securities laws prohibit any person who misappropriates material nonpublic information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Stilwell Group further acknowledges that Stilwell will be subject to SCPIE’s insider trading and disclosure policies, as in effect from time to time, at any time while he is on the Board to the same extent as the other Directors of SCPIE. To the extent SEC Regulation FD may apply, in accordance with Section 243.100 (2)(ii) of Regulation FD, the Stilwell Group expressly agrees to maintain material nonpublic information concerning SCPIE in confidence. 12. Remedies. SCPIE and the Stilwell Group acknowledge and agree that a breach or threatened breach by either party may give rise to irreparable injury inadequately compensable in damages, and accordingly each party shall be entitled to injunctive relief to prevent a breach of the provisions hereof and to enforce   5 specifically the terms and provisions hereof in any state or federal court having jurisdiction, in addition to any other remedy to which such aggrieved party may be entitled to at law or in equity. In the event either party institutes any legal action to enforce such party’s rights under, or recover damages for breach of, this Agreement, the prevailing party or parties in such action shall be entitled to recover from the other party or parties all costs and expenses, including but not limited to reasonable attorneys’ fees, court costs, witness fees, disbursements and any other expenses of litigation or negotiation incurred by such prevailing party or parties. 13. Notices. All notice requirements and other communications shall be deemed given when delivered or on the following business day after being sent by overnight courier with a nationally recognized courier service such as Federal Express, addressed to the Stilwell Group and SCPIE as follows: SCPIE: SCPIE Holdings Inc. 1888 Century Park East Attention: General Counsel Milton A. Miller, Esq. Latham & Watkins LLP 633 W. 5th Street, Suite 4000 The Stilwell Group: Mr. Joseph Stilwell 26 Broadway, 23rd Floor Spencer L. Schneider, Esq. 70 Lafayette Street 14. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to herein. 15. Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, and signature pages may be delivered by facsimile, each of which when so executed shall be and the same agreement.   6 16. Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. enforced in accordance with the laws of the State of Delaware, without regard to choice of law principles that would compel the application of the laws of any other jurisdiction. 18. Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 19. Successors and Assigns. This Agreement shall not be assignable by any of the parties to this Agreement. This Agreement, however, shall be binding on successors of the parties hereto. 20. Survival of Representations, Warranties and Agreements. All representations, warranties, covenants and agreements made herein shall survive the execution and 21. Amendments. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by all of the parties hereto. 22. Further Action. Each party agrees to execute any and all documents, and to do and perform any and all acts and things necessary or proper to effectuate or further evidence the terms and provisions of this Agreement. 23. Consent to Jurisdiction. Each of the parties hereby irrevocably submits to the exclusive jurisdiction of any United States Federal or state court sitting in the State of Delaware in any action or proceeding arising out of or relating to this Agreement and each of the parties hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in any such court. 24. Expenses. Each party agrees to bear its own expenses in connection with the transactions contemplated hereby.   7   SCPIE HOLDINGS INC. By:   /s/ Donald J. Zuk   Donald J. Zuk President and CEO   JOSEPH STILWELL   /s/ Joseph Stilwell   STILWELL VALUE LLC By:   /s/ Joseph Stilwell   JOSEPH STILWELL Managing and Sole Member   STILWELL VALUE PARTNERS III, L.P. By:   /s/ Joseph Stilwell   STILWELL VALUE LLC General Partner, by Joseph Stilwell, Managing and Sole Member   8 ATTACHMENT A   (Investors)    Robert B. Tschudy Senior Vice President and CFO SCPIE Holdings Inc. 310/557-8739 e-mail: [email protected]   Roger Pondel PondelWilkinson Inc. 310/279-5980 e-mail: [email protected]    (Media)    Howard Bender Vice President/Communications SCPIE Holdings Inc. 310/551-5948 E-MAIL: [email protected] SCPIE HOLDINGS TO ADD INVESTOR JOSEPH STILWELL TO ITS BOARD OF DIRECTORS Los Angeles, California – December 15, 2006 – SCPIE Holdings Inc. (NYSE:SKP) announced today that Joseph Stilwell will be joining SCPIE’s Board of Directors on January 15, 2007. He is replacing Donald (Pat) Newell, who is resigning from the Board on the same date. Stilwell is a New York-based private investor, and his Stilwell Group is one of SCPIE’s largest stockholders. In connection with Stilwell’s appointment, the Stilwell Group and SCPIE have entered into a three-year settlement agreement, which provides that the Stilwell Group will support SCPIE’s slate of nominees at its 2007 Annual Meeting of Stockholders. SCPIE will nominate Stilwell at the meeting for a three-year term. Additionally, the Stilwell Group will support SCPIE’s slate of directors at its 2008 and 2009 Annual Meetings of Stockholders, unless prior to such meetings Stilwell resigns from the Board or the settlement agreement is otherwise terminated. SCPIE also announced that Stilwell has been appointed to the Strategic Planning Committee of the Board of Directors, effective January 15, 2007. “We are pleased to welcome Joseph Stilwell to our Board,” said Donald J. Zuk, SCPIE President and Chief Executive Officer. “We have maintained an ongoing dialogue with Joe as his group has increased its position in the Company. His experience with board affiliations on companies similar to SCPIE will make him an excellent addition to our Board. “In turn, I want to thank Pat Newell for his years of service on our Board, and recognize him for his many contributions. His three decades with SCPIE are most appreciated; he will be missed.”   9 About SCPIE Holdings SCPIE Holdings Inc. is a leading provider of healthcare liability insurance for physicians, oral and maxillofacial surgeons, and other healthcare providers, as well as medical groups and healthcare facilities. Since the company was founded in 1976, it has carved out a significant niche in the insurance industry by providing innovative products and services specifically for the healthcare community. ### Forward-Looking Statements In addition to historical information, this news release contains forward-looking statements that are based upon SCPIE’s estimates and expectations concerning future events and are subject to certain risks and uncertainties that could cause actual results to differ materially from those reflected in the forward-looking statements. Forward-looking statements include statements herein regarding SCPIE’s future annual meeting of stockholders. In light of the significant uncertainties inherent in the forward-looking information herein, the inclusion of such information should not be regarded as a representation by SCPIE or any other person that SCPIE’s objectives or plans will be realized.   10

EXHIBIT 23.2 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM Vision-Sciences,Inc. Orangeburg, New York We hereby consent to the incorporation by reference in the Registration Statements on FormS-8 (Numbers 333-170357, 333-72547, 333-48654, 333-148721, and 333-154150) of Vision-Sciences,Inc. of our report dated June 2, 2010, relating to the consolidated financial statements as of March 31, 2010 and for the year then ended, which appear in this Form10-K. /s/ Amper, Politziner & Mattia, LLP Edison, New Jersey June 2, 2011

      Notice of Grant of Restricted Stock Unit Award   BROADCOM INC. Under the LSI Corporation   1320 Ridder Park Drive 2003 Equity Incentive Plan           GRANTEE NAME: <Participant Name>   Grant Date: <Grant Date> GRANTEE ID: <Employee ID> GRANT NUMBER: <Client Grant ID>   Number of Restricted Stock Units: <Number of Awards Granted> On the grant date shown above, Broadcom Inc., a Delaware corporation (the “Company”), granted to the grantee identified above (“you” or the “Participant”) the number of restricted stock units shown above (the “RSUs” or “Restricted Stock Units”) under the LSI Corporation 2003 Equity Incentive Plan, as amended (the “Plan”). If and when it vests, each RSU entitles you to receive one share of the Company’s common stock (each, a “Share”). The RSUs will vest as follows if you have not incurred a Termination of Services prior to the applicable time of vesting: [insert vesting provisions] By accepting this award electronically through the Plan service provider’s online grant acceptance process: (1) You agree that the RSUs are governed by this Notice of Grant and the attached Restricted Stock Unit Award Agreement (including Exhibits and Annexes thereto and together with the Notice of Grant, the “Agreement”) and the Plan. (2) You have received, read and understand the Agreement, the Plan and the prospectus for the Plan. (3) You agree that the Company, in its sole discretion, may satisfy any withholding obligations in respect of the RSUs and any other restricted stock units, if any, granted to you prior to the Grant Date under the Plan or any other Company equity incentive plan (each, a “Prior Award”) in accordance with Section 2.6 of the Agreement by (i) withholding Shares otherwise issuable to you upon vesting of the RSUs or such Prior Award, (ii) instructing a broker on your behalf to sell Shares otherwise issuable to you upon vesting of the RSUs or such Prior Award and submit the proceeds of such sale to the Company or (iii) using any other method permitted by Section 2.6 of the Agreement, the Plan or the equity incentive plan pursuant to which such Prior Award was granted. (4) You agree to accept as binding all decisions or interpretations of the Committee or its delegate regarding any questions relating to the Plan or the Agreement, including, if you provide services outside the United States, the global provisions and any specific provisions for the country in which you provide services, attached to the Agreement as Exhibit A. (5) You have read and agree to comply with the Company’s Insider Trading Policy. Capitalized terms not specifically defined in this Notice shall have the meanings specified in the Plan or the Agreement. 1 LSI Plan RSU Agreement LSI CORPORATION 2003 EQUITY INCENTIVE PLAN Broadcom Inc., a Delaware corporation (the “Company”), pursuant to its LSI Corporation 2003 Equity Incentive Plan, as amended from time to time (the “Plan”), has granted to the grantee indicated in the attached Notice of Grant (the “Notice of Grant”) an award of restricted stock units (“Restricted Stock Units” or “RSUs”). The RSUs are subject to all of the terms and conditions set forth in this Restricted Stock Unit Award Agreement (including Exhibits and Annexes hereto and together with the Notice of Grant, the “Agreement”) and the Plan. BY ACCEPTING THIS AWARD, YOU CONSENT TO THE USE AND SHARING OF YOUR PERSONAL DATA AS SET FORTH IN THE APPLICABLE PROVISIONS IN EXHIBIT A ARTICLE I GENERAL 1.1    Defined Terms. Capitalized terms not specifically defined in this Agreement shall have the meanings specified in the Plan or in the Notice of Grant, unless the context clearly requires otherwise. (a)    “Termination of Directorship” shall mean the time when Participant, if he or she is or becomes a Nonemployee Director, ceases to be a Director for any reason, including, but not by way of limitation, a termination by resignation, failure to be elected, death or retirement. The Board, in its sole and absolute discretion, shall determine the effect of all matters and questions relating to Termination of Directorship with respect to Nonemployee Directors. (b)    “Termination of Employment” shall mean the time when the employee-employer relationship between Participant and the Company or any Subsidiary is terminated for any reason, with or without cause, including, but not by way of limitation, a termination by resignation, discharge, death, disability or retirement; but excluding terminations where there is a simultaneous reemployment or continuing employment of Participant by the Company or any Subsidiary. The Committee, in its absolute discretion, shall determine the effect of all matters and questions relating to Termination of Employment, including, but not by way of limitation, the question of whether a particular leave of absence constitutes a Termination of Employment. (c)    “Termination of Services” shall mean Participant’s Termination of Directorship or Termination of Employment, as applicable. 1.2    General. Each Restricted Stock Unit represents the right to receive one Share if and when it vests. The Restricted Stock Units shall not be treated as 1.3    Incorporation of Terms of Plan. RSUs are subject to the terms and conditions of the Plan which are incorporated herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control. ARTICLE II 1 LSI Plan RSU Agreement GRANT OF RESTRICTED STOCK UNITS 2.1    Grant of RSUs. In consideration of your continued employment with or service to the Company or a Subsidiary and for other good and valuable consideration, effective as of the Grant Date set forth in the Notice of Grant (the “Grant Date”), the Company granted to you the number of RSUs set forth in the Notice of Grant. 2.2    Company’s Obligation to Pay. Unless and until the RSUs will have vested in the manner set forth in Article II hereof, you will have no right to payment of any such RSUs. Prior to actual payment of any vested RSUs, such RSUs will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company. 2.3    Vesting Schedule. Subject to Section 2.4, your RSUs will vest and become nonforfeitable with respect to the applicable portion thereof according to the vesting schedule set forth in the Notice of Grant (the “Vesting Schedule”) as long as you have not had a Termination of Services prior to the vesting date for such portion. Unless otherwise determined by the Committee, employment or service for a portion, even a substantial portion, of any vesting period will not entitle you to any proportionate vesting or avoid or mitigate a termination of rights and benefits upon or following a Termination of Services as provided in Section 2.5 below or under the Plan. 2.4    Change in Control Treatment. In the event the successor corporation in a Change in Control refuses to assume or substitute for the RSUs in accordance with Section 9.1 of the Plan, the RSUs will vest as of immediately prior to such Change in Control. 2.5    Forfeiture, Termination and Cancellation upon Termination of Services. Upon your Termination of Services for any or no reason, any then-unvested RSUs (after giving effect to any accelerated vesting pursuant to Section 2.4) will be automatically forfeited, terminated and cancelled as of the applicable termination date without payment of any consideration by the Company, and you, or your beneficiary or personal representative, as the case may be, shall have no further rights hereunder. 2.6    Payment after Vesting. (a)    On or before the tenth (10th) day following the vesting of any Restricted Stock Units pursuant to Section 2.3, 2.4 or 3.2, the Company shall deliver to the Participant a number of Shares equal to the number of Restricted Stock Units that so vested, unless such Restricted Stock Units terminate prior to the given vesting date pursuant to Section 2.5. Notwithstanding the foregoing, in the event Shares cannot be issued because of the failure to meet one or more of the conditions set forth in Section 2.8(a), (b) or (c) hereof, then the Shares shall be issued pursuant to the preceding sentence as soon as administratively practicable after the Committee determines that Shares can again be issued in accordance with Sections 2.8(a), (b) and (c) hereof. Notwithstanding any discretion in the Plan, the Notice of Grant or this Agreement to the contrary, upon vesting of the RSUs, Shares will be issued as set forth in this section. In no event will the RSUs be settled in cash. (b)     Notwithstanding anything to the contrary in this Agreement or the agreements evidencing any Prior Awards, the Company shall be entitled to require you to pay any sums required by applicable law to be withheld with respect to the RSUs, the issuance of Shares or with respect to any Prior Awards. Such payment shall be made in such form of consideration as determined by the Company in its sole discretion, including: 2 LSI Plan RSU Agreement (i)     Cash or check; (ii)    Surrender of Shares otherwise issuable under the RSUs or Prior Awards, as applicable, and having an aggregate Fair Market Value on the date of delivery equal to the minimum amount required to be withheld by applicable law; (iii)    Other property acceptable to the Company in its sole discretion (including, without limitation, through the delivery of a notice that you have placed a market sell order with a broker (the “Agent”) with respect to the Shares then issuable under the RSUs or Prior Awards, as applicable (or the Company placing such an order on your behalf), and that the Agent has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of its withholding obligations; provided that payment of such proceeds is then made to the Company upon settlement of such sale (a “Sell to Cover”)); or (iv)     By deduction from other compensation payable to you. This Section 2.6(b) shall survive termination of this Agreement until all tax withholding obligations arising in connection with this Award have been satisfied. The Company shall not be obligated to deliver any Shares to you unless and until you have paid or otherwise satisfied in full the amount of all federal, state, local and foreign taxes required to be withheld in connection with the grant or vesting of the RSUs. 2.7    Rights as Stockholder. As a holder of RSUs you are not, and do not have any of the rights or privileges of, a stockholder of the Company, including, without limitation, any dividend rights or voting rights, in respect of the RSUs and any Shares issuable upon vesting thereof unless and until such Shares shall have been actually issued by the Company to you. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 4.3 of the Plan. 2.8    Conditions to Delivery of Shares. Subject to Section 13.3 of the Plan, the Shares deliverable hereunder, or any portion thereof, may be either previously authorized but unissued Shares or issued Shares which have then been reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company shall not be required to issue or deliver any Shares deliverable hereunder prior to fulfillment of all of the following conditions: (a)    The admission of such Shares to listing on all stock exchanges on which the Shares are then listed; (b)    The completion of any registration or other qualification of such Shares under any state, federal or foreign law or under rulings or regulations of the Securities and Exchange Commission or of any other governmental regulatory body, advisable; (c)    The obtaining of any approval or other clearance from any state, federal or foreign governmental agency which the Committee shall, in its absolute discretion, determine to be necessary or advisable; 3 LSI Plan RSU Agreement (d)    The receipt by the Company of full payment for such Shares, including payment of any applicable withholding tax, which may be in one or more of the forms of consideration permitted under Section 2.6 hereof; and (e)    The lapse of such reasonable period of time following the vesting of any Restricted Stock Units as the Committee may from time to time establish for reasons of administrative convenience. ARTICLE III OTHER PROVISIONS 3.1    Administration. The Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpret, amend or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon you, the Company and all other interested persons. No member of the Committee or the Board shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan, this Agreement or the RSUs. 3.2    Adjustments Upon Specified Events. In addition, upon the occurrence of certain events relating to the Shares contemplated by Section 4.3 of the Plan (including, without limitation, an extraordinary cash dividend on such Shares), the Committee shall make such adjustments as the Committee deems appropriate in the number of Restricted Stock Units then outstanding and the number and kind of securities that may be issued in respect of the Restricted Stock Units. You acknowledge that the RSUs are subject to modification and termination in certain events as provided in this Agreement and Section 9 of the Plan. 3.3    Grant is Not Transferable. Your RSUs may not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of the RSUs, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, the RSUs will terminate immediately and will become null and void. 3.4    Notices. Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of the Secretary of the Company at the Company’s principal office, and any notice to be given to Participant shall be addressed to Participant at the Participant’s last address reflected on the Company’s records, including any email address. By a notice given pursuant to this Section 3.4, either party may hereafter designate a different address for notices to be given to that party. Any notice to the Company shall be deemed given when actually received. Any notice given by the Company shall be deemed given when sent via email or 5 U.S. business days after mailing. 3.5    Titles. Titles provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. 3.6    Governing Law; Severability. The laws of the State of California shall govern the interpretation, validity, administration, enforcement and performance of the terms of this Agreement regardless of the law that might be applied under 4 LSI Plan RSU Agreement 3.7    Conformity to Securities Laws. You acknowledge that the Plan and this Agreement are intended to conform to the extent necessary with all provisions of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and any and all regulations and rules promulgated by the Securities and Exchange Commission thereunder, and state and foreign securities laws and regulations. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the RSUs are granted, only in such a manner as to conform to such laws, rules and regulations. To the extent permitted by applicable law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.     3.8    Amendments, Suspension and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Committee or the Board, provided, that, except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall adversely affect the RSUs in any material way without your prior written consent. 3.9    Successors and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth in Section 3.3 hereof, this Agreement shall be binding upon Participant and his or her heirs, executors, 3.10    Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if you are subject to Section 16 of the Exchange Act, the Plan, the RSUs and this Agreement shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To the extent permitted by and necessary to comply with applicable law, this Agreement shall be deemed amended to the extent necessary to conform to such applicable exemptive rule. 3.11    Not a Contract of Employment. Nothing in this Agreement or in the Plan shall confer upon you any right to continue to serve as an employee or other service provider of the Company or any of its Subsidiaries. 3.12    Entire Agreement. The Plan, the Notice of Grant and this Agreement constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Participant with 3.13    Section 409A. The RSUs are not intended to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the date hereof, “Section 409A”). However, notwithstanding any other provision of the Plan or this Agreement, if at any time the Committee determines that the RSUs (or any portion thereof) may be subject to Section 409A, the Committee shall have the right in its sole discretion (without any obligation to do so or to indemnify you or any other person for failure to do so) to adopt such amendments to the Plan or this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Committee determines are necessary or appropriate either for the RSUs to be exempt from the application of Section 409A or to comply with the requirements of Section 409A. 3.14    Limitation on Participant’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. Neither the Plan nor any underlying program, in and of itself, has any 5 LSI Plan RSU Agreement assets. The Participant shall have only the rights of a general unsecured creditor of the Company with respect to amounts credited and benefits payable, if any, with respect to the RSUs, and rights no greater than the right to receive the Shares as a general unsecured creditor with respect to RSUs, as and when payable hereunder. 3.15    Additional Terms for Participants Providing Services Outside the United States. To the extent you provide services to the Company or a Subsidiary in a country other than the United States, the RSUs shall be subject to such additional or substitute terms as shall be set forth for such country in Exhibit A attached hereto. If you relocate to one of the countries included in Exhibit A during the life of the RSUs, Exhibit A, including the provisions for such country, shall apply to you and the RSUs, to the extent the Company determines that the application of such provisions is necessary or advisable in order to comply with applicable law or facilitate the administration of the Plan. In addition, the Company reserves the right to impose other requirements on the RSUs and the Shares issued upon vesting of the RSUs, to the extent the Company determines it is necessary or advisable in order to comply with local laws or facilitate the administration of the Plan, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. 6 LSI Plan RSU Agreement

Investor Contacts: Media Contacts: Carol K. Nelson, CEO Rob Disotell, CCO Cascade Bank www.cascadebank.com Paul Kranhold / Diane Henry Sard Verbinnen & Co NEWS RELEASE Cascade Financial and Opus Bank Sign Definitive Merger Agreement Transaction Creates Highly-Capitalized Bank Serving Washington State Everett, WA – March 4, 2011 – Cascade Financial Corporation (“Cascade Financial”) (NASDAQ:CASB), parent company of Cascade Bank, today announced that Cascade Financial, Cascade Bank (the “Bank”) and Opus Bank, Irvine, CA, have entered into a definitive agreement, providing for Opus Bank to acquire Cascade Financial and its principal operating subsidiary, Cascade Bank, and for the merger of Cascade Bank into Opus Bank.According to the terms of the agreement, Opus Bank will pay approximately $16.25 million to retire Cascade Financial’s $39 million in preferred stock and associated warrants issued to the United States Department of the Treasury under the Treasury’s Capital Purchase Program, and $5.5 million in cash to the holders of Cascade Financial’s common stock.The purchase price for Cascade Financial’s common stock represents approximately $0.45 cash per share outstanding. In addition, Opus Bank will assume all of Cascade Financial’s obligations with respect to trust preferred securities issued by Cascade Financial’s trust subsidiaries. Since July of 2010, Cascade Bank has been operating under a Consent Order with the FDIC under which Cascade Bank is required to increase its capital ratios.As of December 31, 2010, Cascade Bank required approximately $68 million in new capital to meet the minimum Tier 1 leverage ratio requirement of 10% under the Consent Order.Since late 2009, Cascade Financial’s Board and management team have been reviewing alternatives to improve the bank’s capital position with the assistance of its financial advisor, Sandler O’Neill + Partners LP, a nationally recognized investment banking firm and expert in the banking industry.As part of its review, the Board of Directors considered a range of alternatives including potential capital infusions from private investors and financial institutions, strategic combinations and private equity transactions, and actively solicited offers from potential investors and acquirers.The definitive merger agreement with Opus Bank was unanimously approved by the Boards of Directors of Cascade Financial, Cascade Bank and Opus Bank. As a result of the proposed transaction, Cascade Bank expects to benefit from Opus Bank’s strong capital position.Last year, Opus Bank successfully completed a recapitalization, infusing a total of $460 million of new capital into the bank.Opus Bank’s growth goals include the creation of a strong super-regional banking franchise in the Western United States, encompassing the states of Washington, Oregon, California, Arizona and Nevada. "The economic recession severely impacted the Snohomish County area and Cascade Bank," said Carol K. Nelson, President and CEO. "After carefully considering all options, the Board of Directors and management determined Cascade Bank needed to substantially increase its capital base to meet regulatory requirements and remain competitive, and a merger with Opus Bank was the best option for our shareholders, customers, and employees. We share many strategic and cultural goals with Opus Bank, and by joining forces we will be able to continue to serve our communities and support the economy of the State of Washington.In this economic environment, a strong and well-capitalized multi-billion dollar community bank can have a significant impact on a region’s economy. Opus Bank holds a very clear vision of rebuilding communities and their economies, by providing businesses and entrepreneurs the much needed capital funding that they can use to invest in their businesses, increase staffing and grow. Opus Bank’s focus on increasing the capital funding in the communities it serves and the support it provides to those communities are in line with Cascade’s culture and long heritage." CASB press release March 4, 2011 Stephen H. Gordon, Chairman, Chief Executive Officer and President of Opus Bank stated, “I deeply believe that strong and well-capitalized financial institutions need to step up and immediately have a positive impact on our local economies, thereby leading the economic turnaround.Opus Bank intends to do its part by infusing capital funding and liquidity back into its local economies.This infusion of capital will be a driving force for creating new jobs and rebuilding healthy and vibrant communities.” Gordon added, “We look forward to welcoming Cascade's 218 employees to the Opus Bank team when we receive all required approvals and close the transaction. With its highly-respected team of experienced bankers, 22 banking offices in the Puget Sound and Seattle metropolitan region, and amongst the highest capital ratios of banks in the Western region, Opus Bank will enable small and mid-sized businesses, real estate investors, entrepreneurs, and individuals who share our vision to build and expand, to have access to the capital to do so, thereby helping to turn around the region’s economy.” Cascade Financial, headquartered in Everett, Washington, had total assets of $1.5 billion and total deposits of $1.1 billion at December 31, 2010.Cascade Financial was advised in this transaction by Sandler O’Neill + Partners, LP and the law firm of Keller Rohrback LLP based in Seattle.The merger is subject to the approval of Cascade Financial Corporation’s shareholders, the approval of federal and state regulatory authorities, and other customary conditions. The parties expect to close the transaction in the latter part of the second quarter of 2011. In connection with the proposed transaction, Cascade Financial will prepare and file with the Securities and Exchange Commission (“SEC”) a Proxy Statement related to the special meeting of stockholders it intends to call to solicit stockholders’ approval of the merger agreement and the transactions provided for therein.Shareholders are urged to read the Proxy Statement regarding the merger transaction when it becomes available and any other relevant documents filed with the SEC, as well as any amendments or supplements to those documents, because they will contain important information.A free copy of the Proxy Statement, as well as other filings containing information about Cascade Financial, may be obtained at the SEC's Internet site (http://www.sec.gov).You will also be able to obtain these documents, free of charge, from Cascade Financial at www.cascadebank.com under the tab "Investor Relations”. About Cascade Financial Established in 1916, Cascade Bank, the only operating subsidiary of Cascade Financial, is a state chartered commercial bank headquartered in Everett, Washington.Cascade Bank maintains an “Outstanding” CRA rating and has proudly served the Puget Sound region for over 90 years.Cascade Bank operates 22 full service branches in Everett, Lynnwood, Marysville, Mukilteo, Shoreline, Smokey Point, Issaquah, Clearview, Woodinville, Lake Stevens, Bellevue, Snohomish, North Bend, Burlington and Edmonds. In November 2010, Cascade Bank was named Favorite Snohomish County (with fewer than 250 employees) in NWJobs.com’s People’s Picks campaign for the second year in a row.In April 2010, Cascade was ranked #8 on the Puget Sound Business Journal’s list of largest bank companies headquartered in the Puget Sound area. About Opus Bank Opus Bank is an FDIC insured California state-chartered commercial bank with $693.5 million of total assets, $104 million of total loans, $275.3 million in total deposits, and $414.2 million of total equity, as of December 31, 2010. Opus Bank provides high value, relationship-based banking products and exceptional service to its clients comprised of small and mid-sized commercial businesses, entrepreneurs, real estate investors, high-net-worth individuals, professionals, and consumers. Opus Bank offers a wide range of loan products, including commercial and industrial, commercial real estate, multifamily residential, jumbo single-family residential, construction, consumer loans, and is a Small Business Administration (“SBA”) Preferred Lender. Opus Bank currently operates banking offices in Los Angeles County, CA located in the communities of Manhattan Beach, Redondo Beach, Rancho Palos Verdes/San Pedro, Rolling Hills Estates, and Torrance, and maintains an executive and administrative office in Irvine, located in Orange County, California.For additional information about Opus Bank, please visit our Web site at www.opusbank.com. CASB press release March 4, 2011 Forward-Looking Statements This press release contains forward-looking statements. Any statements about our expectations, beliefs, plans, predictions, forecasts, objectives, assumptions or future events or performance are not historical facts and may be forward-looking. These statements are often, but not always, made through the use of words or phrases such as “anticipate,” “believes,” “can,” “could,” “may,” “predicts,” “potential,” “should,” “will,” “estimate,” “plans,” “projects,” “continuing,” “ongoing,” “expects,” “intends” and similar words or phrases.Accordingly, these statements are only predictions and involve estimates, known and unknown risks, assumptions and uncertainties that could cause actual results to differ materially from those expressed in them.Our actual results could differ materially from those anticipated in such forward-looking statements, including as a result of factors outside Opus Bank’s or Cascade Financial’s control, such as economic and other conditions in the markets in which Opus Bank and Cascade Financial operate; inability to complete the transaction announced today; managements’ ability to effectively execute their respective business plans, including any changes in management or employees; regulatory enforcement actions to which Cascade Financial and Cascade Bank arecurrently and may in the future be subject; changes in capital classification; changes in the economy affecting real estate values; inability to attract and retain deposits; changes in the level of non-performing assets and charge-offs; changes in the financial performance and/or condition of borrowers; inflation, interest rate, cost of funds, securities market and monetary fluctuations; changes in laws and regulations; and competition.All forward-looking statements are necessarily only estimates of future results, and there can be no assurance that actual results will not differ materially from expectations, and, therefore, you are cautioned not to place undue reliance on such statements.Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events. Note:Transmitted on GlobeNewswire on March 4, 2011 at 2:00 p.m. PST.

Management Assessment of Compliance with Applicable Servicing Criteria 1. CitiMortgage, Inc. (the “Servicer”) is responsible for assessing compliance with the applicable servicing criteria set forth in Item 1122(d) of Regulation AB of the Securities and Exchange Commission, as set forth in Exhibit A hereto, in connection with the servicing of 1) first lien residential mortgage loans except for (a) Freddie Mac, Fannie Mae, and Ginnie Mae residential mortgage loan securitizations unless part of a special bond program and (b) loans held for its own portfolio and 2) student loans issued subsequent to January 1, 2004, for which the Servicer performs a particular servicing function pursuant to a servicing agreement with a third party, utilizing the Citilink system (the “Platform”) as of and for the year ended December 31, 2009; 2. The Servicer has engaged certain vendors (the “Vendors”) to perform specific, limited or scripted activities as of and for the year ended December 31, 2009. As set forth in Exhibit A hereto, the Servicer’s management has determined that these Vendors are not considered a “servicer” as defined in Item 1101(j) of Regulation AB, and the Servicer’s management has elected to take responsibility for assessing compliance with the servicing criteria applicable to each Vendor as permitted by Interpretation 17.06 of the SEC Division of Corporation Finance Manual of Publicly Available Telephone Interpretations (Interpretation 17.06). As permitted by Interpretation 17.06, management has asserted that it has policies and procedures in place designed to provide reasonable assurance that the Vendors’ activities comply in all material respects with the servicing criteria applicable to each Vendor. The Servicer’s management is solely responsible for determining that it meets the SEC requirements to apply Interpretation 17.06 for the Vendors and related criteria; 3. Except as set forth in paragraph 4 below, the Servicer used the criteria set forth in paragraph (d) of Item 1122 of Regulation AB to assess the compliance with the applicable servicing criteria as of and for the year ended December 31, 2009; 4. The criteria listed as Inapplicable Servicing Criteria on Exhibit A hereto are inapplicable to the Servicer based on the activities it performs with respect to asset-backed securities transactions involving the Platform.For student loan transactions, all of the criteria on Exhibit A are inapplicable to the Servicer, except for 1122(d)(3)(i)(A), 1122(d)(3)(i)(B) and 1122(d)(3)(ii), based on the activities it performs with respect to asset-backed securities transactions involving the Platform; 5. The Servicer has complied, in all material respects, with the applicable servicing criteria as of and for the year ended December 31, 2009; 6. The Servicer has not identified and is not aware of any material instance of noncompliance by the Vendors with the applicable servicing criteria as of and for the year ended December 31, 2009; 7. The Servicer has not identified any material deficiency in its policies and procedures to monitor the compliance by the Vendors with the applicable servicing criteria as of and for the year ended December 31, 2009; and 8. KPMG LLP, a registered public accounting firm, has issued an attestation report on the Servicer’s assessment of compliance with the applicable servicing criteria as of and for the year ended December 31, 2009. February 24, 2010 By: /s/ Herb Gover Name: Herb Gover Title:Senior Vice President, CitiMortgage, Inc. Senior Officer in Charge of Servicing Exhibit A – Citilink Platform SERVICING CRITERIA APPLICABLE SERVICING CRITERIA INAPPLICABLE SERVICING CRITERIA Reference Criteria Performed Directly by CitiMortgage, Inc. Performed by Vendor(s) for which CitiMortgage, Inc. is the Responsible Party Performed by subservicer(s) or vendor(s) for which CitiMortgage, Inc. is NOT the Responsible Party1 NOT performed by CitiMortgage, Inc. or by subservicer(s) or vendor(s) retained by CitiMortgage, Inc.2 General Servicing Considerations 1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements. X 1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities. X 1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer for the loans are maintained. X 1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements. X Cash Collection and Administration 1122(d)(2)(i) Payments on loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. Xi Xii 1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. Xiii Xiv Xv 1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. X 1 Check only those criteria which are performed by subservicer(s) or vendor(s) retained by CitiMortgage. 2 Check only those criteria which CitiMortgage does NOT (i) perform directly, (ii) take responsibility for the performance of by a Vendor, or (iii) retain subservicer(s) or vendor(s) to perform. SERVICING CRITERIA APPLICABLE SERVICING CRITERIA INAPPLICABLE SERVICING CRITERIA Reference Criteria Performed Directly by CitiMortgage, Inc. Performed by Vendor(s) for which CitiMortgage, Inc. is the Responsible Party Performed by subservicer(s) or vendor(s) for which CitiMortgage, Inc. is NOT the Responsible Party1 NOT performed by CitiMortgage, Inc. or by subservicer(s) or vendor(s) retained by CitiMortgage, Inc.2 1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. X 1122(d)(2)(v) Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. X 1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X 1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. X SERVICING CRITERIA APPLICABLE SERVICING CRITERIA INAPPLICABLE SERVICING CRITERIA Reference Criteria Performed Directly by CitiMortgage, Inc. Performed by Vendor(s) for which CitiMortgage, Inc. is the Responsible Party Performed by subservicer(s) or vendor(s) for which CitiMortgage, Inc. is NOT the Responsible Party1 NOT performed by CitiMortgage, Inc. or by subservicer(s) or vendor(s) retained by CitiMortgage, Inc.2 Investor Remittances and Reporting 1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of loans serviced by the Servicer. X 1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. X 1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements. X 1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. X Pool Asset Administration 1122(d)(4)(i) Collateral or security on loans is maintained as required by the transaction agreements or related mortgage loan documents. Xvi Xvii 1122(d)(4)(ii) Loans and related documents are safeguarded as required by the transaction agreements Xviii Xix 1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements. X SERVICING CRITERIA APPLICABLE SERVICING CRITERIA INAPPLICABLE SERVICING CRITERIA Reference Criteria Performed Directly by CitiMortgage, Inc. Performed by Vendor(s) for which CitiMortgage, Inc. is the Responsible Party Performed by subservicer(s) or vendor(s) for which CitiMortgage, Inc. is NOT the Responsible Party1 NOT performed by CitiMortgage, Inc. or by subservicer(s) or vendor(s) retained by CitiMortgage, Inc.2 1122(d)(4)(iv) Payments on loans, including any payoffs, made in accordance with the related loan documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related loan documents. Xx Xxi 1122(d)(4)(v) The Servicer’s records regarding the loans agree with the Servicer’s records with respect to an obligor’s unpaid principal balance. X 1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's loans(e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents. X 1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements. X 1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment). X 1122(d)(4)(ix) Adjustments to interest rates or rates of return for loans with variable rates are computed based on the related loan documents. X SERVICING CRITERIA APPLICABLE SERVICING CRITERIA INAPPLICABLE SERVICING CRITERIA Reference Criteria Performed Directly by CitiMortgage, Inc. Performed by Vendor(s) for which CitiMortgage, Inc. is the Responsible Party Performed by subservicer(s) or vendor(s) for which CitiMortgage, Inc. is NOT the Responsible Party1 NOT performed by CitiMortgage, Inc. or by subservicer(s) or vendor(s) retained by CitiMortgage, Inc.2 1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related loan, or such other number of days specified in the transaction agreements.

EXECUTION COPY PLAN SUPPORT AGREEMENT This PLAN SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of March 15, 2013, by and among (i) Rotech Healthcare Inc. and its undersigned subsidiaries (collectively, the “Company” or the “Debtors”) and (ii) the undersigned holders of second lien senior secured notes issued under the Second Lien Indenture (as defined below) and first lien senior secured notes issued under the First Lien Indenture (as defined below) (each, a “Consenting Noteholder”) (each of the foregoing, a “Party,” and collectively, the RECITALS WHEREAS, the Company and the Consenting Noteholders are negotiating potential restructuring and recapitalization transactions (collectively, the “Transactions”) pursuant to the terms and conditions set forth in the Restructuring Term Sheet, dated March 15, 2013 (the “Restructuring Term Sheet”), a copy of which is attached hereto as Exhibit A, and this Agreement, with respect to the capital structure of the Company, including the Company’s obligations (the “Second Lien Note Claims”) under the 10.5% Senior Second Lien Notes due 2018 issued pursuant to the Indenture, dated as of March 17, 2011 (the “Second Lien Indenture”), by and among Rotech Healthcare Inc., as Issuer, the subsidiary guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as Trustee (the “Trustee”); and WHEREAS, if the Company does not find a satisfactory means outside of voluntary reorganization cases (the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) to satisfy or restructure its outstanding secured indebtedness, the Company intends to commence Chapter 11 Cases in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) to effect the Transactions through a prearranged plan of reorganization that (i) implements and is consistent in all respects with the Restructuring Term Sheet and this Agreement and (ii) is (and all exhibits, appendices, plan supplement documents and documents related thereto are) in form and substance satisfactory to the Consenting Noteholders (the “Plan of Reorganization”); NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound hereby, agrees as follows: AGREEMENT Section 1.Agreement Effective Date. This Agreement, and the rights and obligations of the Parties hereunder, shall be effective on the date on which the following conditions have been satisfied (the “Agreement Effective Date”): (a)    the Company shall have executed and delivered counterpart signature pages of this Agreement to counsel to the Consenting Noteholders; (b)     holders of at least two-thirds in amount of outstanding Second Lien Note Claims shall have executed and delivered to the Company counterpart signature pages of this Agreement; and (c)     the Company shall have paid all reasonable fees and expenses as of the Agreement Effective Date of Wachtell, Lipton, Rosen & Katz (“WLRK”) as attorneys for the Consenting Noteholders. Section 2.    Restructuring Term Sheet. The Restructuring Term Sheet is expressly incorporated herein and is made part of this Agreement. The Restructuring Term Sheet is supplemented by the terms and conditions of this Agreement. In the event of any inconsistency between the Restructuring Term Sheet and this Agreement, this Agreement shall control. Section 3.    Commitments Regarding the Transactions. 3.01.    Agreement to Vote. (a)    As long as this Agreement has not been terminated in accordance with the terms hereof, each Consenting Noteholder shall, subject to (i) the receipt by such Consenting Noteholder of a disclosure statement and other solicitation materials in respect of the Plan of Reorganization, which disclosure statement and solicitation materials (collectively, the “Solicitation Materials”) (x) reflect the agreement set forth in the Restructuring Term Sheet, (y) have been approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code and (z) are in all respects satisfactory to the Consenting Noteholders, and (ii) the Consenting Noteholder being entitled under such Plan of Reorganization to vote to accept or reject the Plan of Reorganization (including, without limitation, pursuant to the terms of the Junior Lien Intercreditor Agreement, dated as of March 17, 2011 (the “Junior Lien Intercreditor Agreement”), among the Company, The Bank of New York Mellon Trust Company, N.A., as first priority representative, and The Bank of New York Mellon Trust Company, N.A., as second priority representative): (A) vote its Second Lien Note Claims (if any) and its claims, if any, on account of the Company’s obligations (the “First Lien Note Claims” and together with the Second Lien Note Claims, the “Claims”) under the 10.75% Senior Secured Notes due 2015 issued pursuant to the Indenture, dated as of October 6, 2010 (the “First guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as Trustee (the “First Lien Trustee”), in each case, against the Company to accept the Plan of Reorganization by delivering its duly executed and completed ballot accepting such Plan of Reorganization on a timely basis following the commencement of the solicitation and its actual receipt of the Solicitation Materials and ballot; (B) not change or withdraw (or cause to be changed or withdrawn) such vote; and (C) not, in any material respect, (1) object to, delay, impede or take any other action to interfere with acceptance or implementation of the Plan of Reorganization or (2) propose, file, support or vote for any restructuring, workout, plan of arrangement or plan of reorganization for the Company other than the Plan of Reorganization and (3) direct the Trustee or the First Lien Trustee to take any action contemplated in clauses (1) and (2) of this Section 3.01(a)(C). (b)    For the avoidance of doubt, unless this Agreement is terminated in accordance with the terms hereof, each Consenting Noteholder shall not, and shall not direct the Trustee or the First Lien Trustee to exercise any right or remedy for the enforcement, collection or recovery of any of the Claims against the Company; provided, however, that the foregoing prohibition will not (i) prohibit any Consenting Noteholder from taking, or directing the Trustee or the First Lien Trustee to take, any action relating to the maintenance, protection and preservation of the Shared Collateral (as defined in the Junior Lien Intercreditor Agreement); (ii) prohibit any Consenting Noteholder from objecting, or directing the Trustee or the First Lien Trustee to object, to any motion or pleading filed with the Bankruptcy Court seeking approval to use cash collateral (as defined in the Bankruptcy Code) or to enter into a debtor-in-possession financing arrangement, in each case, other than on terms and conditions reasonably acceptable to Consenting Noteholders holding no less than a majority in principal amount of the Second Lien Note Claims held at such time by the Consenting Noteholders; and (iii) limit any Consenting Noteholder’s rights under any applicable indenture, credit agreement, other loan document, and/or applicable law to: (A) terminate or close out any swap agreement, repurchase agreement or similar transaction with the Company to the extent the underlying agreement permits such termination or close-out or (B) appear and participate as a party in interest in any matter to be adjudicated in any case under the Bankruptcy Code concerning the Company, so long as such appearance and the positions advocated in connection therewith are not materially inconsistent with the Plan of Reorganization and do not hinder, delay or prevent consummation of the Transactions in any material respect. 3.02.    Commitment of Company.  The Company shall (a) support and complete the Transactions embodied in the Restructuring Term Sheet; (b) do all things necessary and appropriate in furtherance of the Transactions embodied therein, including, without limitation, in the absence of consummating an out-of-court restructuring to satisfy the Company’s outstanding secured indebtedness, (i) commencing the Chapter 11 Cases on or before April 9, 2013 (the “Outside Petition Date,” and the actual commencement date, the “Petition Date”) and (ii) taking all steps necessary and desirable to obtain an order of the Bankruptcy Court, acceptable in all respects to each of the Consenting Noteholders, confirming the Plan of Reorganization within the timeframes contemplated by this Agreement; (c) obtain any and all required regulatory and/or third-party approvals for the transactions (including the Transactions) embodied in the Restructuring Term Sheet and Plan of Reorganization; and (d) not take any action inconsistent with, or intended or likely to interfere with consummation of, the restructuring and the transactions (including the Transactions) embodied in the Restructuring Term Sheet and Plan of Reorganization. Regardless of whether such transactions are consummated, the Company shall promptly pay in cash upon demand any and all fees and reasonable and documented accrued and unpaid out-of-pocket expenses incurred by WLRK and one local counsel, if any, on behalf of the Consenting Noteholders in connection with the negotiation, documentation and consummation of this Agreement, the Restructuring Term Sheet, the Plan of Reorganization, the Solicitation Materials and all other documents related to the Plan of Reorganization and such transactions. 3.03.    Transfer of Interests and Securities.  Except as expressly provided herein, this Agreement shall not in any way restrict the right or ability of any Consenting Noteholder to sell, use, assign, transfer or otherwise dispose of (“Transfer”) any of the Claims; provided, however, that during the period commencing as of the date hereof until termination of this Agreement pursuant to its terms (such period, the “Restricted Period”), no Consenting Noteholder shall Transfer any Claim, and any purported Transfer of Claims shall be void and without effect, unless (a) the transferee is a Consenting Noteholder or (b) if the transferee is not a Consenting Noteholder, prior to the Transfer such transferee delivers to the Company, at or before the time of the proposed Transfer, an executed copy of Exhibit B attached hereto (a “Provision for Transfer Agreement”). This Agreement shall not preclude the Consenting Noteholders from acquiring additional Claims; provided, however, that (i) any Consenting Noteholder that acquires additional Claims after executing this Agreement shall notify the Company and the Trustee of such acquisition within five Business Days after the closing of such trade and (ii) such additional Claims shall automatically and immediately upon acquisition by a Consenting Noteholder be deemed subject to all of the terms of this Agreement whether or not notice of such acquisition is given to the Company and the Trustee. This Section 3.03 shall not impose any obligation on (x) the Company to issue any “cleansing letter” or otherwise publicly disclose information for the purpose of enabling a Consenting Noteholder to Transfer any Claims or (y) the Trustee to monitor or enforce the provisions of this Section 3.03 as they relate to the Consenting Noteholders. 3.04.    Representation of Consenting Noteholders.  Each of the Consenting Noteholders, severally and not jointly, represents and warrants that, as of the date such Consenting Noteholder executes and delivers this Agreement: (a)    it is the beneficial owner of the face amount of the Second Lien Note Claims (if any), as reflected in such Consenting Noteholder’s signature block to this Agreement, which amount the Company and each Consenting Noteholder acknowledge and agree is proprietary and confidential to such Consenting Noteholder; (b)    other than pursuant to this Agreement, such Second Lien Note Claims are free and clear of any pledge, lien, security interest, charge, claim, equity, option, proxy, voting restriction, right of first refusal or other limitation on disposition, or encumbrances of any kind, that would materially adversely affect in any way such Consenting Noteholder’s performance of its obligations contained in this Agreement at the time such obligations are required to be performed; (c)    (i) it is either (A) a qualified institutional buyer as defined in Rule 144A of the Securities Act or (B) an institutional accredited investor as defined in Rule 501(a)(1), (2), (3), or (7) under the Securities Act, and (ii) any securities acquired by the Consenting Noteholder in connection with the transactions described herein will not have been acquired with a view towards distribution; and (d)    as of the date hereof it has no actual knowledge of any event that, due to any fiduciary or similar duty to any other person, would prevent it from taking any action required of it under this Agreement. Section 4.    Certain Additional Chapter 11 Related Matters.  If the Company determines it will likely commence the Chapter 11 Cases, the Company shall provide draft copies of all “first day” motions or applications and all other documents and pleadings the Company intends to file with the Bankruptcy Court to counsel for the Consenting Noteholders at least 5 Business Days before the date the Company intends to file such document, and shall consult in good faith with such counsel regarding the form and substance of any such proposed filing with the Bankruptcy Court. Section 5.    Mutual Representations, Warranties and Covenants.  Each of the Parties, severally and not jointly, represents, warrants and covenants to each other Party, as of the date of this Agreement, as follows (each of which is a continuing representation, warranty and covenant): 5.01.    Enforceability.  It is validly existing and in good standing under the laws of the state of its organization, and this Agreement is a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable laws relating to or limiting creditor’s rights generally (including, without limitation, Section 365 of the Bankruptcy Code) or by equitable principles relating to enforceability. 5.02.    No Consent or Approval.  Except as expressly provided in this Agreement or the Bankruptcy Code, no consent or approval is required by any other person or entity for such Party to carry out the Transactions contemplated by, and perform its respective obligations under, this Agreement. 5.03.    Power and Authority.  It has all requisite power and authority to enter into this Agreement and to carry out the Transactions contemplated by, and 5.04.    Authorization.  Its execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action on its part. 5.05.    Governmental Consents. The execution, delivery and performance by it of this Agreement does not and shall not require any registration or filing with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body (other than, with respect to the Company’s performance of this Agreement, the Bankruptcy Court). 5.06.    No Conflicts. The execution, delivery and performance of this Agreement does not and shall not: (i) violate any provision of law, rules or regulations applicable to it or any of its subsidiaries in any material respect; (ii) violate its certificate of incorporation, bylaws or other organizational documents or those of any of its subsidiaries; or (iii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it or any of its subsidiaries is a party. Section 6.    Termination Events. 6.01.    Consenting Lender Termination Events.  This Agreement shall terminate automatically without any required action or notice upon the occurrence of any of the following events (each such event a “Termination Event”) unless the occurrence of such Termination Event is, before or after such occurrence, waived in writing by Consenting Noteholders holding two-thirds of the outstanding principal amount of Second Lien Note Claims held at such time by the Consenting Noteholders: (e)    failure of the Debtors to commence the Chapter 11 Cases on or before the Outside Petition Date; (f)    failure of the Debtors to file the Plan of Reorganization and related disclosure statement with the Bankruptcy Court on the Petition Date; (g)    the Bankruptcy Court’s orders approving the Solicitation Materials and setting a hearing to confirm the Plans shall not have been entered by the Bankruptcy Court within 45 days after the filing of the Plan of Reorganization; (h)    the Bankruptcy Court’s order confirming the Plan of Reorganization (the “Confirmation Order”), which order shall be acceptable in all respects to each of the Consenting Noteholders, shall not have been entered by the Bankruptcy Court within 75 days after the date that the Solicitation Materials are approved; (i)    the effective date of the Plan of Reorganization shall not have occurred within 14 days after the date that the Plan of Reorganization is confirmed (the “Outside Date”); (j)    the breach in any material respect by the Company of any of its obligations, representations, warranties or covenants set forth in this Agreement; (k)    the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any injunction, judgment, decree, charge, ruling or order preventing consummation of a material portion of the Transactions; (l)    the conversion of one or more of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code (or any Debtor’s application for, consent to, or acquiescence in, any such relief), unless such conversion, dismissal, termination, stay or modification, as applicable, is made with the prior written consent of Consenting Noteholders holding no less than a majority in principal amount of the Second Lien Note Claims held at such time by the Consenting Noteholders; (m)    the appointment of an interim or permanent trustee, receiver or examiner with expanded powers to operate or manage the financial affairs, business or reorganization of any Debtor in one or more of the Chapter 11 Cases, unless such appointment is made with the prior written consent of Consenting Noteholders holding no less than a majority in principal amount of the Second Lien Note Claims held at such time by the Consenting Noteholders; (n)    the amendment, modification or filing of a pleading by the Company seeking to amend or modify the Plan of Reorganization, Solicitation Materials or any documents related to the foregoing, including motions, notices, exhibits, appendices and orders, in a manner adverse to any Consenting Noteholder and not reasonably acceptable to Consenting Noteholders holding no less than a majority in principal amount of the Second Lien Note Claims held at such time by the Consenting Noteholders; (o)    the Debtors file any motion or pleading with the Bankruptcy Court seeking approval to use cash collateral (as defined in the Bankruptcy Code) or to enter into a debtor-in-possession financing arrangement, in each case, other than on terms and conditions reasonably acceptable to Consenting Noteholders holding no less than a majority in principal amount of the Second Lien Note Claims held at such time by the Consenting Noteholders; (p)    the Debtors file any motion or pleading with the Bankruptcy Court or take any other action that is inconsistent in any material respect with this Agreement, the Restructuring Term Sheet or any documents related to the foregoing and is adverse to the any Consenting Noteholder; (q)    Consenting Noteholders holding no less than a majority in principal Noteholders shall have conducted due diligence of the Company’s allowable administrative, priority, and general unsecured claims and shall have determined in good faith that the aggregate of such amounts are likely to be materially in excess of the amounts currently estimated by the Company and shared with the Consenting Noteholders; (r)    The Consenting Noteholders holding no less than one-third in principal Noteholders, shall not be satisfied at any time in their sole and absolute discretion that (a) the Company does not owe the United States government, or any agency, department or instrumentality thereof, or any other person additional amounts in excess of $250,000 in the aggregate (whether on account of overpayments, penalties, fines or interest) relating to oxygen contents billing from January 1, 2008 to the present or any violation of Medicare or Medicaid laws or other state or Federal law applicable to Persons doing business in the home medical equipment industry, or (b) the Company has not billed incorrect amounts in excess of $250,000 in the aggregate to its benefit after its disclosure that it refunded overpayments in its Form 8-K dated May 15, 2012; or (s)    The occurrence of any change, effect, event, occurrence, development, circumstance or state of facts, on or after the date of this Agreement, which has or would reasonably be expected to have a materially adverse effect on the business, properties, operations, financial condition or results of operations of the Debtors, taken as a whole, or which materially impairs the ability of the Debtors to perform their obligations under this Agreement or has a materially adverse effect on or prevents or materially delays the consummation of the Transactions; provided, that in no event shall any of the following, alone or in combination, be taken into account in determining whether there has been, or would reasonably likely be, a material adverse effect: (i) any effect directly resulting from the public announcement of and compliance with the terms and conditions of this Agreement or the Restructuring Term Sheet (including, without limitation, the commencement of the Chapter 11 Cases); (ii) any effect that results from events, circumstances or situations affecting the home medical equipment industry and/or the United States economy generally, so long as such effect does not disproportionately affect the Debtors as compared to similarly situated participants and its businesses; (iii) any effect that results from events, circumstances or situations affecting general worldwide or national economic or capital market conditions, including acts of war (whether or not declared), acts of terrorism or sabotage, natural disasters or other force majeure events, so long as such effect does not disproportionately affect the Debtors as compared to similarly situated parties and its businesses. Notwithstanding any provision in this Agreement to the contrary, upon the written consent of the Consenting Noteholders holding a majority in principal Noteholders, the dates set forth in this Section 6.01 may be extended before or upon each such date, and such later dates agreed to in lieu thereof shall be of the same force and effect as the dates provided herein. 6.02.    Company Termination Events.  The Company may terminate this Agreement as to all Parties upon five Business Days’ prior written notice, delivered in accordance with Section 8.10 hereof, upon the occurrence of any of the following events: (a) the breach by any of the Consenting Noteholders of any of the representations, warranties or covenants of such Consenting Noteholders set forth in this Agreement that would have a material adverse impact on the Company or the consummation of the Transactions, and that remains uncured for a period of five Business Days after the receipt by the Consenting Noteholders of notice of such breach; (b) the board of directors of the Company reasonably determines (i) that, based upon the advice of counsel, proceeding with the Transactions would be inconsistent with the exercise of its fiduciary duties, (ii) to pursue an alternative transaction and (iii) that such alternative transaction will provide for maximization of the value of the Second Lien Note Claims; or (c) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any injunction, judgment, decree, charge, ruling or order preventing consummation of a material portion of the Transactions. Notwithstanding the foregoing, prior to assumption of this Agreement with Bankruptcy Court approval, nothing herein deprives the Company of its rights under Section 365 of the Bankruptcy Code. 6.03.    Mutual Termination.  This Agreement, and the obligations of all Parties hereunder, may be terminated by mutual agreement among (a) the Company and (b) Consenting Noteholders holding a majority in principal amount of the Second Lien Note Claims held at such time by the Consenting Noteholders. 6.04.    Effect of Termination.  (a)    Upon termination of this Agreement under Section 6.01, 6.02 or 6.03, this Agreement (and any Provision for Transfer Agreement executed prior to such termination) shall be of no further force and effect and each Party hereto (and to any Provision for Transfer Agreement executed prior to such termination) shall be released from its commitments, undertakings and agreements under or related to this Agreement and shall have the rights and remedies that it would have had it not entered into this Agreement, and shall be entitled to take all actions, whether with respect to the Transactions or otherwise, that it would have been entitled to take had it not entered into this Agreement. Upon the occurrence of any termination of this Agreement, any and all consents tendered by the Consenting Noteholders before such termination shall be deemed, for all purposes, to be null and void from the first instance and shall not be considered or otherwise used in any manner by the Parties in connection with the Transactions and this Agreement or otherwise. (b)    Notwithstanding clause (a) of this Section 6.04, the Company’s obligations pursuant to the final sentence of Section 3.02 shall survive any termination of this Agreement and shall at all times continue to be enforceable against the Company. 6.05.    Termination Upon Effective Date of Plan.  This Agreement shall terminate automatically without any further required action or notice on the date that the Plan of Reorganization becomes effective (immediately following the effectiveness of the Plan of Reorganization). Section 7.    Effectiveness; Amendments.  This Agreement, including the Restructuring Term Sheet, may not be modified, amended or supplemented (except as expressly provided herein or therein) except in writing signed by the Company and Consenting Noteholders holding no less than a majority in principal amount of the Second Lien Note Claims held at such time by the Consenting Noteholders. Section 8.    Miscellaneous. 8.01.    Further Assurances.  Subject to the other terms of this Agreement, the Parties shall execute and deliver such other instruments and perform such other acts, in addition to the matters herein specified, as may be reasonably necessary, from time to time, to effectuate the Transactions. 8.02.    Complete Agreement.  This Agreement is the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, oral or written, between the Parties with respect thereto. No claim of waiver, modification, consent or acquiescence with respect to any provision of this Agreement shall be made against any Party, except on the basis of a written instrument executed by or on behalf of such Party. 8.03.    Parties.  This Agreement shall be binding upon, and inure to the benefit of, the Parties. No rights or obligations of any Party under this Agreement may be assigned or transferred to any other person or entity except as provided in Section 3.03 hereof. 8.04.    Headings.  The headings of all sections of this Agreement are inserted solely for the convenience of reference and are not a part of and are not intended to govern, limit or aid in the construction or interpretation of any term or provision hereof. 8.05.    GOVERNING LAW; SUBMISSION TO JURISDICTION; SELECTION OF FORUM; WAIVER OF TRIAL BY JURY.  THIS AGREEMENT IS TO BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each Party hereto shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, to the extent possible, in either the United States District Court for the Southern District of New York or any New York State court sitting in New York City (the “Chosen Courts”), and solely in connection with claims arising under this Agreement (a) irrevocably submits to the exclusive jurisdiction of the Chosen Courts; (b) waives any objection to laying venue in any such action or proceeding in the Chosen Courts; and (c) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party hereto; provided, however, that if the Company commences the Chapter 11 Cases, then the Bankruptcy Court shall be the sole Chosen Court. Each party hereto irrevocably waives any relating to this Agreement or the transactions contemplated hereby. 8.06.    Execution of Agreement.  This Agreement may be executed and delivered (by facsimile, electronic mail or otherwise) in any number of counterparts, each of which, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement. 8.07.    Interpretation.  This Agreement is the product of negotiations between the Company and the Consenting Noteholders, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement, or any portion hereof, shall not be effective in regard to the interpretation hereof. 8.08.    Successors and Assigns.  This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, assigns, heirs, executors, administrators and representatives, other than a trustee or similar representative appointed in a bankruptcy case. 8.09.    Relationship Among Parties.  No Consenting Noteholder has any fiduciary duty or other duty of trust or confidence in any form with any other Consenting Noteholder, and, except as provided in this Agreement, there are no commitments among or between them. No prior history, pattern or practice of sharing confidences among or between the Consenting Noteholders shall in any way affect or negate this understanding and agreement. 8.10.    Notices.  All notices hereunder shall be deemed given if in writing and delivered, if sent by facsimile, electronic mail, courier or registered or certified mail (return receipt requested) to the following addresses and facsimile numbers (or at such other addresses or telecopier numbers as shall be specified by like notice): (a)    if to the Company, to: Rotech Healthcare Inc. 2600 Technology Drive Suite 300 Orlando, FL 32804 Facsimile: (407) 521-9814 Attention: Rebecca L. Myers, Chief Legal Officer E-mail address: [email protected] with copies (which shall not constitute notice) to: Proskauer Rose LLP Eleven Times Square New York, New York 10036 Facsimile: (212) 969-2900 Attention: Martin J. Bienenstock, Esq. E-mail addresses: [email protected] (b)    if to a Consenting Noteholder or a transferee thereof, to the addresses or telecopier numbers set forth below following the Consenting Noteholder’s signature (or as directed by any transferee thereof), as the case may be., with copies (which shall not constitute notice) to: Wachtell, Lipton, Rosen & Katz     51 West 52nd Street     Telephone: (212) 403-1000     Facsimile: (212) 403-2000     Attention: Scott K. Charles, Esq. and Michael S. Benn, Esq. Any notice given by delivery, mail or courier shall be effective when received. Any notice given by facsimile shall be effective upon machine confirmation of transmission. 8.11.    Waiver.  Except as expressly provided in this Agreement, nothing herein is intended to, or does, or shall be deemed in any manner to waive, limit, impair or restrict any right or the ability of each of the Consenting Noteholders to protect and preserve its rights, remedies and interests, including, without limitation, its claims against the Company. Without limiting the foregoing sentence in any way, if the Transactions are not consummated, or if this Agreement is terminated for any reason (other than Section 6.05 hereof), the Parties each fully reserve any and all of their rights and remedies. 8.12.    Specific Performance.  Money damages would be an insufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy of any such breach, including, without limitation, an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder. 8.13.    Several, Not Joint, Obligations.  The agreements, representations and obligations of the Parties under this Agreement are, in all respects, several and not joint. 8.14.    Remedies Cumulative.  All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any right, power or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party. 8.15.    No Third-Party Beneficiaries.  Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties, and no other person or entity shall be a third-party beneficiary hereof. 8.16.    Junior Lien Intercreditor Agreement. Notwithstanding anything herein to the contrary, the terms of this Agreement shall be enforceable against each Consenting Noteholder only to the extent permitted by the terms of the Junior Lien Intercreditor Agreement. In the event of any conflict between the terms of the Junior Lien Intercreditor Agreement and this Agreement, the terms of the Junior Lien Intercreditor Agreement shall govern and control. Section 9.    Disclosure. The Company shall publicly disclose (a) the existence of this Agreement in a filing with the Bankruptcy Court on the Petition Date and (b) any amendment to this Agreement in a filing with the Bankruptcy Court following the effective date of such amendment, each in form and substance reasonably acceptable to each of the Consenting Noteholders (it being understood that the face amount of Claims held by each Consenting Noteholder is proprietary and confidential to such Consenting Noteholder and shall not be disclosed). To the extent that the Company fails to make such initial disclosure within five Business Days following the Petition Date or the effective date of any amendment hereto, each of the Consenting Noteholders shall each have the right, but not the obligation, to disclose such terms publicly. Prior to the release or filing thereof, the Company will submit to counsel for the Consenting Noteholders all press releases and public filings relating to this Agreement, the Plan of Reorganization or the Transactions contemplated hereby and thereby and any amendments thereof. The Company shall not use the name of any Consenting Noteholder in any press release without such Consenting Noteholder’s prior written consent. Nothing herein precludes the Company from publicly disclosing this Agreement upon its effectiveness and prior to any potential case under title 11 of the Bankruptcy Code (it being understood that the face amount of Claims held by each Consenting Noteholder is proprietary and confidential to such Consenting Noteholder and shall not be disclosed).  IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and Signature Page to the Plan Support Agreement     ROTECH HEALTHCARE INC.               By:   /s/ Steven P. Alsene   Name: Steven P. Alsene   Title:   EACH OF THE SUBSIDIARY DEBTORS LISTED BELOW   By:   Name: Steven P. Alsene   Title: President   A-1 MEDICAL EQUIPMENT, INC. ABBA MEDICAL EQUIPMENT, INC. ACADIA HOME CARE ALLIED MEDICAL SUPPLY, INC. ALWAYS MEDICAL EQUIPMENT, INC. ANDY BOYD’S INHOME MEDICAL, INC., WEST ANDY BOYD’S INHOME MEDICAL/INHOME MEDICAL INC. ANNISTON HEALTH & SICKROOM SUPPLIES, INC. BERKELEY MEDICAL EQUIPMENT, INC. BETA MEDICAL EQUIPMENT, INC. CAMBRIA MEDICAL SUPPLY, INC. CAMDEN MEDICAL SUPPLY, INC. CARE MEDICAL SUPPLIES, INC. CENTENNIAL MEDICAL EQUIPMENT, INC. CHARLOTTE MEDICAL SUPPLY, INC. COLLINS RENTALS, INC. COMMUNITY HOME OXYGEN, INC. CONTOUR MEDICAL SUPPLY, INC. CORLEY HOME HELATH CARE, INC. CPO 2, INC. CYNTHIANA HOME MEDICAL EQUIPMENT, INC. DANIEL MEDICAL SYSTEMS, INC. DISTINCT HOME HEALTH CARE, INC. DON PAUL RESPIRATORY SERVICES, INC. DUMED, INC. EAST TENNESSEE INFUSION & RESPIRATORY, INC. ELLIS COUNTY HOME MEDICAL EQUIPMENT, LLC ENCORE HOME HEALTH CARE, INC. EXCEL MEDICAL OF FORT DODGE, INC. EXCEL MEDICAL OF MARSHALLTOWN, INC. FIRST COMMUNITY CARE OF NIAGARA, INC. FIRSTCARE, INC. FISCHER MEDICAL EQUIPMENT, INC. FOUR RIVERS HOME HEALTH CARE, INC. G&G MEDICAL, INC. GATE CITY MEDICAL EQUIPMENT, INC. GEORGIA MEDICAL RESOURCES, INC. GLADWIN AREA HOME CARE, INC. HAMILTON MEDICAL EQUIPMENT SERVICE, INC. HEALTH CARE SERVICES OF MISSISSIPPI, INCORPORATED HOLLAND MEDICAL SERVICES, INC. HOME CARE OXYGEN SERVICE, INC. HOME MEDICAL SYSTEMS, INC. HIS ACQUISITION XXVII, INC. INTEGRATED HEALTH SERVICES AT JEFFERSON HOSPITAL, INC. INTENSIVE HOME CARE SERVICES, INC. IOTA MEDICAL EQUIPMENT, INC. LAMBDA MEDICAL EQUIPMENT, INC. LAMS, INC. LAWRENCE MEDICAL EQUIPMENT, INC. LOVEJOY MEDICAL, INC. MAJOR MEDICAL SUPPLY, INC. MEDCO PROFESSIONAL SERVICES, CORP. MEDCORP INTERNATIONAL, INC. MEDIC-AIRE MEDICAL EQUIPMENT, INC. MEDICAL ELECTRO-THERAPEUTICS, INC. MEDICARE RENTAL SUPPLY, INC. MICHIGAN MEDICAL SUPPLY, INC. NATIONAL MEDICAL EQUIPMENT CENTERS, INC. NEUMANN’S HOME MEDICAL EQUIPMENT, INC. NIGHTINGALE HOME HEALTH CARE, INC. NORTH CENTRAL WASHINGTON RESPIRATORY CARE SERVICES, INC. NORTHEAST MEDICAL EQUIPMENT, INC. NORTHWEST HOME MEDICAL, INC. OMICRON MEDICAL EQUIPMENT, INC. OXYGEN OF OKLAHOMA, INC. OXYGEN PLUS MEDICAL EQUIPMENT, INC. OXYGEM PLUS, INC. OXYGEN THERAPY ASSOCIATES, INC. PETERSON’S HOME CARE, INC. PHI MEDICAL EQUIPMENT, INC. PIONEER MEDICAL SERVICES, INC. PREFERENTIAL HOME HEALTH CARE, INC. PRINCIPAL MEDICAL EQUIPMENT, INC. PROFESSIONAL BREATHING ASSOCIATES, INC. PROFESSIONAL RESPIRATORY HOME HEALTHCARE, INC. PSI HEALTH CARE, INC. PULMO-DOSE, INC. PULMONARY HOME CARE, INC. QUALICARE HOME MEDICAL, INC. QUALITY HOME HEALTH CARE, INC. R.C.P.S., INC. RCG INFORMATION SERVICES CORPORATION RCI MEDICAL CORP. REGENCY MEDICAL EQUIPMENT, INC. RESP-A-CARE, INC. RESPIRACARE MEDICAL EQUIPMENT, INC. RESPIRATORY MEDICAL EQUIPMENT OF GA., INC. RESPITECH HOME HEALTH CARE, INC. RESPONSIVE HOME HEALTH CARE, INC. RHEMA, INC. RITT MEDICAL GROUP, INC. RN HOME CARE MEDICAL EQUIPMENT COMPANY, INC. ROSWELL HOME MEDICAL, INC. ROTECH EMPLOYEE BENEFITS CORPORATION ROTECH HOME MEDICAL CARE, INC. ROTECH OXYGEN AND MEDICAL EQUIPMENT, INC. ROTH MEDICAL, INC. ROTHERT’S HOSPITAL EQUIPMENT, INC. SAMPSON CONVALESCENT MEDICAL SUPPLY, INC. SELECT HOME HELATH CARE, INC. SIGMA MEDICAL EQUIPMENT, INC. SOUTHEASTERN HOME HEALTH, INC. SUN MEDICAL SUPPLY, INC. SUNSHINE HOME HEALTH CARE, INC. THE KILROY COMPANY THETA HOME HEALTH CARE, INC. TUPELO HOME HEALTH, INC. VALLEY MEDICAL EQUIPMENT, INC. VALUE CARE, INC. VITALCARE HEALTH SERVICES, INC. VITALCARE OF PENNSYLVANIA, INC. VITALCARE OF TEXAS, INC. WHITE’S MEDICAL RENTALS, INC. WICHITA MEDICAL CARE, INC. ZETA HOME HEALTH CARE, INC. Signature Page to Plan Support Agreement                 Name of Entity: Venor Capital Management LP         By: /s/ Michael Wartell     Name: Michael Wartell     Title: Co-Chief Investment Officer                       Name of Entity: Capital International Global High Income Opportunities         By: /s/ Guido Caratsch                             Name: Guido Caratsch     Title: Vice President                       Name of Entity: Capital Guardian Global High-Income Opportunities Master Fund         By: Capital Guardian Trust Company, for and on behalf of Capital Guardian Global High-Income Opportunities Master Fund         By: /s/ Mark E. Brubaker     Name: Mark E. Brubaker                           Name of Entity: Capital Guardian U.S. High-Yiel Fixed-Income Master Fund         By: Capital Guardian Trust Company, for and on behalf of Capital Guardian U.S. High-Yield Fixed-Income Master Fund         By:                               Name of Entity: American High-Income Trust         By: Capital Research and Management Company, for and on behalf of American High-Income Trust         By: /s/ Michael J. Downer     Name: Michael J. Downer     Title: Senior Vice President and Secretary                       Name of Entity: The Bond Fund of America         By: Capital Research and Management Company, for and on behalf of The Bond Fund of America         By:                               Name of Entity: The Income Fund of America         By: Capital Research and Management Company, for and on behalf of The Income Fund of America         By:                               Name of Entity: American Funds Insurance Series - Asset Allocation Fund         By: Capital Research and Management Company, for and on behalf of American Funds Insurance Series - Asset Allocation         By:                               Name of Entity: American Funds Insurance Series - High-Income Bond Fund         By: Insurance Series - High-Income Bond Fund         By:                               Name of Entity: Illinois Municipal Retirement Fund         By: Pyramis Global Advisors Trust Company, as Investment Manager under Power of Attorney         By: /s/ Douglas Payne     Name: Douglas Payne     Title: Assistant Treasurer                       Name of Entity: Fidelity Summer Street Trust: Fidelity Capital & Income Fund         By: /s/ Adrien Deberghes     Name: Adrien Deberghes     Title: Deputy Treasurer                       Name of Entity: Variable Insurance Products V: Strategic Income Portfolio         By:     Name: Adrien Deberghes     Title: Deputy Treasurer                       Name of Entity: Fidelity Advisor Series II: Fidelity Advisor Strategic Income Fund         By:     Name: Adrien Deberghes     Title: Deputy Treasurer                       Name of Entity: Fidelity School Street Trust: Fidelity Strategic Income Fund         By:     Name: Adrien Deberghes     Title: Deputy Treasurer                       Name of Entity: Silver Point Capital Fund, L.P.         By: /s/ Michael A. Gatto         Title: Authorized Signatory                       Name of Entity: Silver Point Capital Offshore Master Fund, L.P.         By:     Name: Miachael A. Gatto     Title: Authorized Signatory       EXHIBIT A Rotech Healthcare Inc. Restructuring Term Sheet March 15, 2013   The following summary outlines the indicative economic terms of a proposed consensual restructuring transaction with respect to Rotech Healthcare Inc. (“Rotech”) and its subsidiaries (collectively the “Company”) pursuant to pre-arranged chapter 11 plans (collectively, the “Plan”) filed and consummated in connection with Chapter 11 cases of the Company (the “Cases”). Until all parties execute definitive documentation, there shall not exist any binding obligation on the part of any party to consummate any of the transactions described herein. This term sheet does not constitute a contractual commitment of any party but merely represents proposed terms for a potential restructuring transaction. In addition, this term sheet has not received internal credit approvals by any party. This term sheet is not intended to be a comprehensive list of all relevant terms and conditions of the potential transaction described herein. It shall not constitute an offer to sell, buy or exchange into, nor the solicitation of an offer to sell, buy or exchange into, any of the securities or instruments referred to herein. Furthermore, nothing herein constitutes a commitment to exchange any debt, lend funds to the Company, vote debt in a certain way, or negotiate, agree to or otherwise engage in any of the transactions described herein. This term sheet is proffered in the nature of a settlement proposal in furtherance of settlement discussions and is entitled to protection from any use or disclosure to any party or person pursuant to Federal Rule of Evidence 408 and any other rule of similar effect. In addition, amounts set forth in brackets represent placeholders regarding amounts that remain subject to change. THIS IS NOT AN OFFERING MEMORANDUM OR PROSPECTUS AND SHOULD NOT BE TREATED AS OFFERING MATERIAL OF ANY SORT AND IS FOR INFORMATION PURPOSES ONLY Existing Indebtedness: As of the date hereof, Rotech has $230.0 million of first lien senior secured notes (the “First Lien Notes”) outstanding under the Indenture, dated October 6, 2010, which notes accrue interest at 10.75% per annum, and $290.0 million of second lien senior secured notes (the “Second Lien Notes” and together with the First Lien Notes, the “Notes”) outstanding under the Indenture, dated March 17, 2011, which notes accrue interest at 10.50% per annum. The Notes are guaranteed by all of Rotech’s wholly-owned subsidiaries. As of the date hereof, Rotech has outstanding term loans of $23.5 million (the “Term Loans”) under its term loan credit agreement. Interest on the Term Loans accrues at Libor plus 10.00% per annum. The Term Loans are secured on a pari passu basis with the First Lien Notes. Transaction Summary: Upon consummation of the Plan, the First Lien Notes will be amended by adjusting their covenants (and potentially with an extended term), the Term Loans will be refinanced, and the Second Lien Notes will be converted on a pro rata basis into 100.0% of the common stock of reorganized Rotech (the “New Stock”) subject to dilution under certain conditions described herein. Each holder of Existing Equity Interests (as defined below) shall receive ten (10) cents per share in cash; it being understood that the aggregate amount distributed to Existing Equity Holders shall not exceed $2,620,000. Proposed Treatment of Claims and Interests:     Administrative Claims, Tax Claims and Priority Claims: All administrative claims, tax claims and priority claims shall be paid in full in cash. Term Loans: Holders of the Term Loans shall receive their pro rata share of $23,500,000 plus any then applicable premium in cash in full satisfaction of their claims. First Lien Notes: The holders of the First Lien Notes shall be provided new notes reflecting an amendment of covenants to correspond to the restructuring (i.e., (i) clarify that change of control does not include issuance of stock to second lienholders pursuant to the plan (ii) clarify that payments pursuant to the Plan shall not be included in the Restricted Payment definition, and (iii) increase the limitation on secured indebtedness to accommodate the new credit facilities pursuant to the Plan), and potentially extend the term of the First Lien Notes. Second Lien Notes: Holders of the Second Lien Notes (the “Second Lien Noteholders”) shall receive their pro rata share of 100.0% of the New Stock, subject to dilution by the new management incentive plan as described below. Intercompany Claims: No distribution shall be made on account of Intercompany Claims, which claims shall be fully cancelled, reinstated or otherwise compromised as determined by reorganized Parent. General Unsecured Claims: On and following the Effective Date (as defined below), holders of general unsecured claims of the Company shall be paid in full in cash when such claims become due in the ordinary course of business (it being understood that the Company shall be permitted to pay all allowed, fixed, liquidated, noncontingent and undisputed prepetition claims of the Company’s general unsecured creditors by a final order of the bankruptcy court (which order shall be in form and substance acceptable to each Consenting Second Lien Noteholder) on and following the petition date so long as such general unsecured creditors agree in writing to maintain or reinstate trade terms during the pendency of the Cases that are (i) at least as favorable as those existing on the petition date or (ii) on terms satisfactory to the Company in its business judgment. Existing Equity Interests: All existing equity interests in the Company shall remain outstanding, other than the equity interests in Rotech (the “Existing Equity Interests”), which shall be cancelled. Each holder of Existing Equity Interests shall receive ten (10) cents per share on the Effective Date; it being understood that the aggregate amount distributed to holders of Existing Equity Interests shall not exceed $2,620,000. Management: New Management Incentive Plan: Up to 5% of the New Stock shall be reserved for issuance under a management incentive plan to be implemented by the new board of directors (the “New Board”) of reorganized Rotech, with such New Stock to be allocated to management by the New Board in the form of restricted stock units and/or stock options vesting over a four-year period commencing on the effective date of the Plan (the “Effective Date”). Severance and Executive Employment Agreements Terms of any severance benefits for non-contractual executives coming into force upon the Effective Date and all claims arising under any executive employment agreements shall be negotiated in good faith. Miscellaneous: Capital Leases: Capital leases will be assumed on the Effective Date and all defaults thereunder will be cured. Corporate Governance: Effective immediately upon the Effective Date, the existing board of directors of Rotech (the “Board”) will be reconstituted as follows: (a) the current directors will resign from the Board and (b) the directors identified at the confirmation hearing shall be installed (it being understood that the Consenting Second Lien Noteholders shall select such new directors). New Stock The New Stock will not be listed on any public stock exchange on the Effective Date. Conditions to Effective Date The Plan shall not become effective unless and until the following conditions are satisfied or waived: ¤    The Plan and disclosure statement shall be in form and substance satisfactory to the Consenting Second Lien Noteholders; ¤    The Bankruptcy Court shall have entered the confirmation order, in form and substance satisfactory to the Consenting Second Lien Noteholders, confirming the Plan; ¤    No stay of the confirmation order shall be in effect at the time the other conditions set forth in the Plan are satisfied or waived; ¤    All documents, instruments and agreements provided for under, or necessary to implement, the Plan (including the plan supplement documents) shall have been executed and delivered by the parties thereto, in form and substance satisfactory to the Company and the Consenting Second Lien Noteholders; ¤    All of the payments to be made by the Company by or on the Effective Date shall have been made or shall be made on the Effective Date; ¤    The Company shall have minimum liquidity in form and amount satisfactory to the Consenting Second Lien Noteholders; ¤    Satisfactory completion of the Consenting Second Lien Noteholder’s due diligence with respect to the Company; and ¤    The Company shall have obtained all governmental and other regulatory approvals or rulings that they believe, in their reasonable discretion, are necessary for consummation of the Plan. Structure: Notwithstanding any contained herein or otherwise, the restructuring transaction described herein shall be implemented through a tax-efficient structure to be agreed upon. EXHIBIT B PROVISION FOR TRANSFER AGREEMENT The undersigned (“Transferee”) hereby acknowledges that it has read and understands the Plan Support Agreement (the “Agreement”),1 dated as of March ___, 2013, by and among the Company and the Consenting Noteholders, including the transferor (the “Transferor”) of the Second Lien Note Claims and/or First Lien Note Claims (as applicable) listed below. The Transferee hereby agrees to be bound by the terms and conditions of the Agreement to the extent Transferor was thereby bound, it being understood that the Transferee shall hereafter be deemed a Consenting Noteholder thereunder to the same extent as the Transferor. The Transferee specifically agrees to be bound by the vote of the Transferor if cast before the effectiveness of the transfer of the Second Lien Note Claims or First Lien Note Claims, as applicable. The Transferee acknowledges and agrees that (i) it has reviewed, or has had the opportunity to review, with the assistance of professional and legal advisors of its choosing, the Agreement and (ii) all representations and warranties set forth in sections 3.04 and 5 of the Agreement are true and correct in all material respects as of the date hereof with respect to such Transferee. This Provision for Transfer Agreement shall take effect and shall become an integral part of the Agreement immediately upon its execution and the Transferee shall be deemed to be bound by all of the terms, conditions and obligations of the Agreement as of the date hereof. Date Executed:  ______, 2013     Print name of Transferee       Name:   Title:       Address:                 Attention:     Telephone:     Facsimile:        

Title: Biological father attempts to force biological mother's boyfriend to stay away from son's activities. Question:Can a child's biological parent legally keep the biological mother's boyfriend from attending functions such as sports practices and school plays? The parents have no legally binding custody agreements. Only a mutually agreed upon 50/50 custody schedule. Other important info: - The father coaches one of the sports teams. - The boyfriend has attended every school play and sports practice for the last two years without any issue or argument until now. I assume this became an issue because it's the bio-dad's first year as a coach. - Mississippi is the location. I'm asking for a non-redditor. I hope that is alright with everyone. Thank you in advance for your thoughts. - Answer #1: Absent a court order, no. But can a custody order say that? Yes. Answer #2: If there is no court order, then bio dad cannot dictate who visits a public place, or private place unless he owns it.

EXHIBIT FORIMMEDIATERELEASE MediaContact: Tad Hutcheson October 23, 2008 678.254.7442 Investor Relations: Jason Bewley 407.318.5188 AirTran Holdings, Inc., Reports Third Quarter Results - Record Revenues of $673 Million - -

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): October 2, 2009 TRILLIANT EXPLORATION CORPORATION (Exact name of registrant as specified in its charter) Nevada 333-138332 20-0936313 (State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.) (Central Index Key Classification) 545 Eighth Avenue, Suite 401

Name: Commission Regulation (EEC) No 3997/89 of 28 December 1989 fixing the import levies on milk and milk products Type: Regulation Date Published: nan 29. 12. 89 Official Journal of the European Communities No L 380/53 COMMISSION REGULATION (EEC) No 3997/89 of 28 December 1989 fixing the import levies on milk and milk products THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to the Act of Accession of Spain and Portugal, Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products ('), as last amended by Regula ­ tion (EEC) No 763/89 (2), and in particular Article 14 (8) thereof, Whereas the import levies on milk and milk products were fixed by Commission Regulation (EEC) No 11 67/89 (3), as last amended by Regulation (EEC) No 3761 /89 (4) ; Whereas it follows from applying the detailed rules contained in Regulation (EEC) No 1167/89 to the prices known to the Commission that the levies at present in force should be altered to the amounts set out in the Annex hereto, HAS ADOPTED THIS REGULATION : Article 1 1 . The import levies referred to in Article 14 of Regu ­ lation (EEC) No 804/68 shall be as set out in the Annex hereto. 2 . There shall be no levy for imports from Portugal , including the Azores and Madeira, for milk and milk products listed in Article 1 of Regulation (EEC) No 804/68 . Article 2 This Regulation shall enter into force on 1 January 1990 . This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels, 28 December 1989 . For the Commission Ray MAC SHARRY Member of the Commission (') OJ No L 148 , 28 . 6 . 1968 , p. 13 . (2) OJ No L 84, 29 . 3 . 1989 , p. 1 . ( ») OJ No L 121 , 29 . 4 . 1989, p. 20 . (4) OJ No L 365, 15 . 12. 1989, p . 19 . No L 380/54 Official Journal of the European Communities 29 . 12. 89 ANNEX to the Commission Regulation of 28 December 1989 fixing the import levies on milk and milk products (ECU/100 kg net weight, unless otherwise indicated) CN code Note Import levy 0401 10 10 14,73 0401 10 90 13,52 0401 20 11 20,46 0401 20 19 19,25 0401 20 91 25,53 0401 20 99 24,32 0401 30 11 65,80 0401 30 19 64,59 0401 30 31 127,08 0401 30 39 125,87 0401 30 91 213,89 0401 30 99 212,68 0402 10 11 97,66 0402 10 19 l 90,41 0402 10 91 . 0,9041 / kg + 25,17 0402 10 99 0 0,9041 / kg + 17,92 0402 21 1 1 l 154,23 0402 21 17 l 146,98 0402 21 19 \ 146,98 0402 21 91 194,64 0402 21 99 \ 187,39 0402 29 1 1 00 1,4698/ kg + 25,17 0402 29 15 0 1,4698 / kg + 25,17 0402 29 19 0 1,4698 / kg + 17,92 0402 29 91 0 1 ,8739 / kg + 25,17 0402 29 99 0 1 ,8739 / kg + 17,92 0402 91 11 || 31,00 0402 91 19 || 31,00 0402 91 31 || 38,75 0402 91 39 l.I 38,75 0402 91 51 127,08 0402 91 59 125,87 0402 91 91 213,89 0402 91 99 \ 212,68 0402 9911 52,87 0402 99 19 52,87 0402 99 31 0 1,2345 / kg + 21,55 0402 99 39 0 ­ 1,2345 / kg + 20,34 0402 99 91 0 2,1 026 / kg + 21,55 0402 99 99 0 2,1 026 / kg + 20,34 29 . 12. 89 Official Journal of the European Communities No L 380/55 (ECU/100 kg net weight, unless otherwise indicated) CN code Note Import levy 0403 10 1 1 \ 22,87 0403 10 13 I 27,94 0403 10 19 \ 68,21 0403 10 31 (')- 0,1 683 / kg + 23,96 040310 33 0 0,21 90 / kg + 23,96 0403 10 39 (') 0,621 7 / kg + 23,96 0403 90 11 \ 97,66 0403 90 13 I 154,23 0403 90 19 194,64 0403 90 31 0 0,9041 / kg + 25,17 0403 90 33 0 1,4698 / kg + 25,17 0403 90 39 (') 1,8739 / kg + 25,17 0403 90 51 22,87 0403 90 53 \ 27,94 0403 90 59 l.I 68,21 0403 90 61 0 0,1 683 / kg + 23,96 0403 90 63 (') 0,2190 / kg + 23,96 0403 90 69 (') 0,621 7 / kg + 23,96 0404 10 11 ll 25,85 0404 10 19 0 0,2585 / kg + 47,92 0404 10 91 (2) 0,2585 / kg 0404 10 99 O 0,2585 / kg + 17,92 0404 90 1 1 97,66 0404 90 13 || 154,23 0404 90 19 194,64 0404 90 31 II 97,66 0404 90 33 II 154,23 0404 90 39 || 194,64 0404 90 51 (') 0,9041 / kg + 25,17 0404 90 53 CM3) 1,4698 / kg + 25,17 0404 90 59 (') 1,8739 / kg + 25,17 0404 90 91 O 0,9041 / kg + 25,17 0404 90 93 00 1,4698 / kg + 25,17 0404 90 99 0 1,8739 / kg + 25,17 0405 00 10 l . 220,08 0405 00 90 268,50 0406 10 10 I 214,17 0406 10 90 I 271,28 0736 20 10 0 393,60 0406 20 90 II 393,60 0406 30 10 0 169,65 0406 30 31 0 162,74 0406 30 39 0 169,65 0406 30 90 0 266,37 0406 40 00 0 158,11 0406 90 1 1 0 219,06 No L 380/56 Official Journal of the European Communities 29 . 12. (ECU/100 kg net weight, unless otherwise indicated) CN code Note Import levy 0406 90 13 (3) 236,69 0406 90 15 (3) 236,69 0406 90 17 0 236,69 0406 90 19 (3) 393,60 0406 90 21 0 219,06 0406 90 23 0 174,56 0406 90 25 0 174,56 0406 90 27 (3) 174,56 0406 90 29 (3) 174,56 0406 90 31 (3) 174,56 0406 90 33 I 174,56 0406 90 35 (3) 174,56 0406 90 37 (3) 174,56 0406 90 39 (3) 174,56 0406 90 50 (3) 174,56 0406 90 61 393,60 0406 90 63 \ 393,60 0406 90 69 l 393,60 0406 90 71 214,17 0406 90 73 174,56 0406 90 75 l 174,56 0406 90 77 l 174,56 0406 90 79 l 174,56 0406 90 81 l 174,56 0406 90 83 l 174,56 040690 85 174,56 0406 90 89 (3) 174,56 040690 91 \ 214,17 0406 90 93 \ 214,17 0406 90 97 l 271,28 0406 90 99 l 271,28 1702 10 10 35,49 1702 10 90 ll 35,49 2106 90 51 ll 35,49 2309 10 15 ll 70,23 2309 10 19 ll 91,02 2309 10 39 \\ 85,81 2309 10 59 \\ 72,03 230910 70 l 91,02 2309 90 35 Il 70,23 2309 90 39 ll 91,02 2309 90 49 ll 85,81 2309 90 59 \\ 72,03 2309 90 70 91,02 29. 12. 89 Official Journal of the European Communities No L 380/57 (') The levy on 100 kg of product falling within this subheading is equal to the sum of the following : (a) the amount per kilogram shown, multiplied by the weight of milk and milk cream contained in 100 kg of product ; and (b) the other amount indicated. (2) The levy on 100 kg of product falling -within this subheading is equal to : (a) the amount per kilogram shown, multiplied by the weight of the dried milk contained in 100 kg of product plus, where appropriate, (b) the other amount indicated. (3) Products falling within this subheading imported from a third country under special arrangements concluded between that country and the Community for which an IMA 1 certificate issued under the conditions provided for in Regulation (EEC) No 1767/82 is issued are subject to the levies in Annex I to that Regulation .

  Exhibit 10.1 EXECUTION COPY     FAIR ISAAC CORPORATION 1.5% SENIOR CONVERTIBLE NOTES, SERIES B DUE AUGUST 15, 2023 INDENTURE DATED AS OF MARCH 31, 2005 WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE         TABLE OF CONTENTS                               Page   ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE     1                         SECTION 1.1.   DEFINITIONS     1       SECTION 1.2.   OTHER DEFINITIONS     6       SECTION 1.3.   TRUST INDENTURE ACT PROVISIONS     7       SECTION 1.4.   RULES OF CONSTRUCTION     7                     ARTICLE 2 THE SECURITIES     8                         SECTION 2.1.   FORM AND DATING     8       SECTION 2.2.   EXECUTION AND AUTHENTICATION     9       SECTION 2.3.   REGISTRAR, PAYING AGENT AND CONVERSION AGENT     10       SECTION 2.4.   PAYING AGENT TO HOLD MONEY IN TRUST     11       SECTION 2.5.   SECURITYHOLDER LISTS     11       SECTION 2.6.   TRANSFER AND EXCHANGE     11       SECTION 2.7.   REPLACEMENT SECURITIES     12       SECTION 2.8.   OUTSTANDING SECURITIES     13       SECTION 2.9.   TREASURY SECURITIES     13       SECTION 2.10.   TEMPORARY SECURITIES     13       SECTION 2.11.   CANCELLATION     13       SECTION 2.12.   LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS     14       SECTION 2.13.   CUSIP NUMBERS     16                     ARTICLE 3 REDEMPTION, PURCHASE AND REPURCHASE     16                         SECTION 3.1.   RIGHT TO REDEEM; NOTICE TO TRUSTEE     16       SECTION 3.2.   SELECTION OF SECURITIES TO BE REDEEMED     17       SECTION 3.3.   NOTICE OF REDEMPTION     17       SECTION 3.4.   EFFECT OF NOTICE OF REDEMPTION     18       SECTION 3.5.   DEPOSIT OF REDEMPTION PRICE     18       SECTION 3.6.   SECURITIES REDEEMED IN PART     19       SECTION 3.7.   CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION     19       SECTION 3.8.   PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL     19       SECTION 3.9.   EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE     22       SECTION 3.10.   DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE     23       SECTION 3.11.   REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER ON SPECIFIED DATES     23       SECTION 3.12.   SECURITIES PURCHASED IN PART     26       SECTION 3.13.   COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES     26       SECTION 3.14.   REPAYMENT TO THE COMPANY     26                     ARTICLE 4 CONVERSION     27                         SECTION 4.1.   CONVERSION PRIVILEGE     27       SECTION 4.2.   CONVERSION PROCEDURE     29   -i-   TABLE OF CONTENTS (continued)                               Page       SECTION 4.3.   FRACTIONAL SHARES     30       SECTION 4.4.   TAXES ON CONVERSION     30       SECTION 4.5.   COMPANY TO PROVIDE STOCK     30       SECTION 4.6.   ADJUSTMENT OF CONVERSION PRICE     31       SECTION 4.7.   NO ADJUSTMENT     36       SECTION 4.8.   ADJUSTMENT FOR TAX PURPOSES     36       SECTION 4.9.   NOTICE OF ADJUSTMENT     36       SECTION 4.10.   NOTICE OF CERTAIN TRANSACTIONS     36       SECTION 4.11.   EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION PRIVILEGE     37       SECTION 4.12.   TRUSTEE’S DISCLAIMER     38       SECTION 4.13.   VOLUNTARY REDUCTION     38       SECTION 4.14.   PAYMENT UPON CONVERSION     38                     ARTICLE 5 MAKE-WHOLE PREMIUM     41                         SECTION 5.1.   MAKE-WHOLE PREMIUM     41       SECTION 5.2.   ADJUSTMENTS RELATING TO MAKE-WHOLE PREMIUM     45                     ARTICLE 6 COVENANTS     45                         SECTION 6.1.   PAYMENT OF SECURITIES     45       SECTION 6.2.   SEC REPORTS     46       SECTION 6.3.   COMPLIANCE CERTIFICATES     46       SECTION 6.4.   FURTHER INSTRUMENTS AND ACTS     46       SECTION 6.5.   MAINTENANCE OF CORPORATE EXISTENCE     46       SECTION 6.6.   RULE 144A INFORMATION REQUIREMENT     46       SECTION 6.7.   STAY, EXTENSION AND USURY LAWS     47       SECTION 6.8.   PAYMENT OF CONTINGENT INTEREST     47                     ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE     47                         SECTION 7.1.   COMPANY MAY CONSOLIDATE, ETC, ONLY ON CERTAIN TERMS     47       SECTION 7.2.   SUCCESSOR SUBSTITUTED     48                     ARTICLE 8 DEFAULT AND REMEDIES     48                         SECTION 8.1.   EVENTS OF DEFAULT     48       SECTION 8.2.   ACCELERATION     50       SECTION 8.3.   OTHER REMEDIES     50       SECTION 8.4.   WAIVER OF DEFAULTS AND EVENTS OF DEFAULT     51       SECTION 8.5.   CONTROL BY MAJORITY     51       SECTION 8.6.   LIMITATIONS ON SUITS     51       SECTION 8.7.   RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT     51       SECTION 8.8.   COLLECTION SUIT BY TRUSTEE     52       SECTION 8.9.   TRUSTEE MAY FILE PROOFS OF CLAIM     52   ii   TABLE OF CONTENTS (continued)                               Page       SECTION 8.10.   PRIORITIES     52       SECTION 8.11.   UNDERTAKING FOR COSTS     53                     ARTICLE 9 TRUSTEE     53                         SECTION 9.1.   DUTIES OF TRUSTEE     53       SECTION 9.2.   RIGHTS OF TRUSTEE     54       SECTION 9.3.   INDIVIDUAL RIGHTS OF TRUSTEE     55       SECTION 9.4.   TRUSTEE’S DISCLAIMER     55       SECTION 9.5.   NOTICE OF DEFAULT OR EVENTS OF DEFAULT     55       SECTION 9.6.   REPORTS BY TRUSTEE TO HOLDERS     55       SECTION 9.7.   COMPENSATION AND INDEMNITY     55       SECTION 9.8.   REPLACEMENT OF TRUSTEE     56       SECTION 9.9.   SUCCESSOR TRUSTEE BY MERGER, ETC     57       SECTION 9.10.   ELIGIBILITY; DISQUALIFICATION     57       SECTION 9.11.   PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY     57                     ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE     57                         SECTION 10.1.   SATISFACTION AND DISCHARGE OF INDENTURE     57       SECTION 10.2.   APPLICATION OF TRUST MONEY     58       SECTION 10.3.   REPAYMENT TO COMPANY     58       SECTION 10.4.   REINSTATEMENT     59                     ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS     59                         SECTION 11.1.   WITHOUT CONSENT OF HOLDERS     59       SECTION 11.2.   WITH CONSENT OF HOLDERS     60       SECTION 11.3.   COMPLIANCE WITH TRUST INDENTURE ACT     61       SECTION 11.4.   REVOCATION AND EFFECT OF CONSENTS     61       SECTION 11.5.   NOTATION ON OR EXCHANGE OF SECURITIES     61       SECTION 11.6.   TRUSTEE TO SIGN AMENDMENTS, ETC     61       SECTION 11.7.   EFFECT OF SUPPLEMENTAL INDENTURES     61                     ARTICLE 12 MISCELLANEOUS     62                         SECTION 12.1.   TRUST INDENTURE ACT CONTROLS     62       SECTION 12.2.   NOTICES     62       SECTION 12.3.   COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS     62       SECTION 12.4.   CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT     62       SECTION 12.5.   RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS     63       SECTION 12.6.   RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT     63       SECTION 12.7.   LEGAL HOLIDAYS     64       SECTION 12.8.   GOVERNING LAW     64       SECTION 12.9.   NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS     64       SECTION 12.10.   NO RECOURSE AGAINST OTHERS     64   iii   TABLE OF CONTENTS (continued)                               Page       SECTION 12.11.   SUCCESSORS     64       SECTION 12.12.   MULTIPLE COUNTERPARTS     64       SECTION 12.13.   SEPARABILITY     64       SECTION 12.14.   TABLE OF CONTENTS, HEADINGS, ETC     64   iv   CROSS-REFERENCE TABLE*           TIA       INDENTURE SECTION       SECTION Section   310(a)(1)   9.10   (a)(2)   9.10   (a)(3)   N.A.**   (a)(4)   N.A.   (a)(5)   9.10   (b)   9.8; 9.10   (c)   N.A. Section   311(a)   9.11   (b)   9.11 Section   312(a)   2.5   (b)   12.3   (c)   12.3 Section   313(a)   9.6   (b)(1)   N.A.   (b)(2)   9.6   (c)   9.6; 12.2   (d)   9.6 Section   314(a)   6.2; 6.4; 12.2   (b)   N.A.   (c)(1)   12.4(a)   (c)(2)   12.4(a)   (c)(3)   N.A.   (d)   N.A.   (e)   12.4(b)   (f)   N.A. Section   315(a)   9.1(b)   (b)   9.5; 12.2   (c)   9.1(a)   (d)   9.1(c)   (e)   8.11 Section   316(a)(last sentence)   2.9   (a)(1)(A)   8.5   (a)(1)(B)   8.4   (a)(2)   N.A.   (b)   8.7   (c)   12.5 Section   317(a)(1)   8.8   (a)(2)   8.9   (b)   2.4 *   This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture.   **   N.A. means Not Applicable.          THIS INDENTURE dated as of March 31, 2005 is between Fair Isaac Corporation, a corporation duly organized under the laws of the State of Delaware (the “Company”), and Wells Fargo Bank, National Association a national banking association organized and existing under the laws of the United States, as Trustee (the “Trustee”).      In consideration of the premises and the tender of the Existing Securities in exchange for the Securities by the Holders thereof, both parties agree as follows for the benefit of the other and for the equal and ratable benefit of the registered Holders of the Company’s 1.5% Senior Convertible Notes, Series B due August 15, 2023. ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE      SECTION 1.1. DEFINITIONS.      “Affiliate” means, with respect to any specified person, any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, “control” when used with respect to any person means the power to direct the the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.      “Agent” means any Registrar, Paying Agent or Conversion Agent.      “Applicable Conversion Rate” means the Conversion Rate on any Trading Day.      “Applicable Conversion Reference Period” means:   •   for Securities tendered for conversion after the Company has specified a Redemption Date, Change in Control Purchase Date or Repurchase Date for those Securities, the ten (10) consecutive Trading Days beginning on the third Trading Day following the date of such notice; or     •   in all other cases, the ten (10) consecutive Trading Days beginning on the third Trading Day following the date the Securities are tendered for conversion.      “Applicable Procedures” means, with respect to any transfer or exchange of beneficial ownership interests in a Global Security, the rules and procedures of the Depositary that are applicable to such transfer or exchange.      “Applicable Stock Price” means an amount equal to the average of the Closing Sale Prices during the Applicable Conversion Reference Period. If application of the definition of Applicable Stock Price results in a value inconsistent with the purpose of the provisions of this Indenture, the Applicable Stock Price shall be the fair value of a share of Common Stock as reasonably determined in good faith by the Board of Directors (whose determination shall be conclusive). 1        “Board of Directors” means either the board of directors of the Company or any committee of the Board of Directors authorized to act for it with respect to this Indenture.      “Business Day” means each day that is not a Legal Holiday.      “Calculation Agent” means the calculation agent from time to time appointed by the Company pursuant to Section 5.1(e).      “Capital Stock” or “capital stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, but excluding any debt securities convertible into such equity.      “cash” means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts.      “Certificated Security” means a Security that is in substantially the form attached hereto as Exhibit A and that does not include the information or the schedule called for by footnotes 1 and 3 thereof.      “Closing Sale Price” means, with respect to the Company’s Common Stock on any date, the last reported per share sale price (or, if no last sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on such date as reported in composite transactions for the principal U.S. securities exchange on which the Company’s Common Stock then is listed, or if the Company’s Common Stock is not listed on a U.S. national or regional exchange, as reported on the National Association of Securities Dealers Automated Quotation System, or if the Company’s Common Stock is not quoted on the National Association of Securities Dealers Automated Quotation System, as reported on the principal other market on which the Common Stock is then traded. In the absence of such quotations, the Board of Directors will make a good faith determination of the Closing Sale Price.      “Common Stock” means the common stock of the Company, $0.01 par value, as it exists on the date of this Indenture and any shares of any class or classes of capital stock of the Company resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company and which are not subject to redemption by the Company; provided, however, that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable on conversion of Securities shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.      “Company” means the party named as such in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture, and thereafter Company means the successor Company.      “Contingent Interest” means interest payable with respect to the Securities for any six-month period from February 15 through August 14 and from August 15 through February 14, commencing with the six-month period beginning on August 15, 2008, if the average of the Trading Prices of a Security for the five consecutive Trading Day period immediately preceding the first day of the applicable six-month period equals 120% or more of the sum of the principal amount of, plus accrued and unpaid regular interest on, the Security. 2   The amount of contingent interest payable per Security in respect of any six-month period will equal 0.25% per annum of the average of the Trading Prices of the Securities for the five Trading Day period immediately preceding such six-month period.      “Conversion Rate” means, with respect to each $1,000 principal amount of Securities, $1,000 divided by the Conversion Price, as such Conversion Price is adjusted in accordance with Section 4.6.      “Conversion Value” means an amount equal to (a) the Applicable Conversion Rate, multiplied by (b) the Applicable Stock Price.      “Corporate Trust Office” means the office of the Trustee at which at any particular time the trust created by this Indenture shall be administered which office at the date of the execution of this Indenture is located at Sixth and Marquette, Minneapolis, Minnesota 55479, Attention: Corporate Trust Services (Fair Isaac Corporation — 1.5% Senior Convertible Notes, Series B due August 15, 2023) or at any other time at such other address as the Trustee may designate from time to time by notice to the Company.      “Daily Share Amount” means a number of shares of Common Stock, for each Security and on each Trading Day in the Applicable Conversion Reference Period, which is equal to the greater of:      (a) zero; or      (b) a number of shares of Common Stock determined by the following formula: (Closing Sale Price on such Trading Day x Applicable Conversion Rate) - $1,000 10 x Closing Sale Price on such Trading Day      “Default” or “default” means, when used with respect to the Securities, any event that is or, after notice or passage of time or both, would be an Event of Default.      “Exchange Act” means the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.      “Final Maturity Date” means August 15, 2023.      “GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth in (1) the Institute of Certified Public Accountants, (2) the statements and pronouncements of the Financial Accounting Standards Board, (3) such other statements by such other entity as approved by a significant segment of the accounting profession and (4) the rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements) in registration statements filed under the Securities Act and periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC.      “Global Security” means a permanent global security that is in substantially the form attached hereto as Exhibit A and that includes the information and schedule called for by footnotes 1 and 2 thereof and which is deposited with the Depositary or its custodian and registered in the name of the Depositary or its nominee. 3        “Holder” or “Securityholder” means the person in whose name a Security is registered on the Primary Registrar’s books.      “Indenture” means this Indenture as amended or supplemented from time to time pursuant to the terms of this Indenture.      “Officer” means the Chairman or any Co-Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Controller, Assistant Controller, the Secretary or any Assistant Secretary of the Company.      “Officers’ Certificate” means a certificate signed by two Officers; provided, however, that for purposes of Sections 4.11 and 6.3, “Officers’ Certificate” means a certificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Company and by one other Officer.      “Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee in the case of such opinions rendered to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.      “Person” or “person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.      “Principal” or “principal” of a debt security, including the Securities, means the principal of the security plus, when appropriate, the premium, if any, on the security.      “Restricted Global Security” means a Global Security that is a Restricted Security.      “Restricted Security” means a Security required to bear the restricted legend called for by footnote 2 in the form of Security set forth in Exhibit A of this Indenture.      “Rule 144” means Rule 144 under the Securities Act or any successor to such Rule.      “Rule 144A” means Rule 144A under the Securities Act or any successor to such Rule.      “Securities” means the 1.5% Senior Convertible Notes, Series B due August 15, 2023 or any of them (each, a “Security”), as amended or supplemented from time to time, that are issued under this Indenture. rules and regulations promulgated thereunder, as in effect from time to time.      “Securities Custodian” means the Trustee, as custodian with respect to the Securities in global form, or any successor thereto.      “Significant Subsidiary” means, in respect of any Person, a Subsidiary of such Person that would constitute a “significant subsidiary” as such term is defined under Rule 1-02 of Regulation S-X under the Securities Act and the Exchange Act. 4        “Subsidiary” means, in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person, or (iii) one or more Subsidiaries of such Person.      “TIA” means the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder as in effect on the date of this Indenture, except as provided in Section 11.3, and except to the extent any amendment to the Trust Indenture Act expressly provides for application of the Trust Indenture Act as in effect on another date.      “Trading Day” means a day during which trading in securities generally occurs on The New York Stock Exchange, or, if the Common Stock is not quoted on The New York Stock Exchange, on the principal other market on which the Common Stock is then traded, other than a day on which a material suspension of or limitation on trading is imposed that affects either The New York Stock Exchange (or, if applicable, such other market) in its entirety or only the shares of Common Stock, by reason of movements in price exceeding limits permitted by the relevant market on which the shares are traded or otherwise, or on which The New York Stock Exchange (or, if applicable, such other market) cannot clear the transfer of the Company’s securities due to an event beyond the Company’s control.      “Trading Price” means, with respect to the Securities on any date of determination, the average of the secondary market bid quotations per Security obtained by the Trustee for $5,000,000 principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from two independent nationally recognized securities dealers selected by the Company, provided that if at least two such bids cannot reasonably be obtained by the Trustee, but one such bid can reasonably be obtained by the Trustee, this one bid shall be used. If the Trustee cannot reasonably obtain at least one bid for $5,000,000 principal amount of the Securities from a nationally recognized securities dealer or in the Company’s reasonable judgment, the bid quotations are not indicative of the secondary market value of the Securities, then the Trading Price of the Securities will equal (a) the applicable Conversion Rate of the Securities multiplied by (b) the sale price of the Common Stock on such determination date.      “Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture, and thereafter means the successor.      “Trust Officer” or “Authorized Officer” means, with respect to the Trustee, any officer assigned to the Corporate Trust Office, and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.      “Unrestricted Global Security” means a Global Security that is not a Restricted Security.      “Vice President” when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”      “Voting Stock” of a Person means any class or classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof. 5        SECTION 1.2. OTHER DEFINITIONS.           Term   Defined in Section “Agent Members”     2.1   “Average Sale Price”     4.1 (a) “Bankruptcy Law”     8.1   “Capital Stock Determination Date”     4.6 (a) “Change in Control”     3.8 (a) “Change in Control Company Notice”     3.8 (a) “Change in Control Purchase Date”     3.8 (a) “Change in Control Purchase Notice”     3.8 (c) “Change in Control Purchase Price”     3.8 (a) “Company Order”     2.2   “Conversion Agent”     2.3   “Conversion Date”     4.2   “Conversion Obligation”     4.14 (a) “Conversion Price”     4.6   “Current Market Price”     4.6 (b) “Custodian”     8.1   “Depositary”     2.1 (a) “Determination Date”     4.6 (a) “Dividend Determination Date”     4.6 (a) “Effective Date”     5.1   “Event of Default”     8.1   “Existing Securities”     2.1   “Expiration Date”     4.6 (a) “Expiration Time”     4.6 (a) “Instrument”     8.1   “Legal Holiday”     12.7   “Legend”     2.12   “Make-Whole Premium”     5.1   “Make-Whole Premium Table”     5.1   “Make-Whole Premium Upon Conversion Notice”     5.1   “Minimum Conversion Price”     4.6 (b) “Net Share Amount”     4.14   “Net Shares”     4.14   “Notice of Default”     8.1   “Notice of Redemption”     3.3   “Paying Agent”     2.3   “Primary Registrar”     2.3   “Principal Return”     4.14   “Public Acquirer Change in Control”     4.14 (c) “Public Acquirer Change in Control Notice”     4.14 (c) “Public Acquirer Common Stock”     4.14 (c) “Purchased Shares”     4.6 (a) “Redemption Date”     3.1   6             Term   Defined in Section   “Redemption Price”     3.1   “Registrar”     2.3   “Repurchase Date”     3.11 (a) “Repurchase Election Notice”     3.11 (b) “Repurchase Notice”     3.11 (b) “Repurchase Price”     3.11 (a) “Rights Determination Date”     4.6 (a) “Rights Plan”     4.6 (c) “Stock Price”     5.1   “Stock Price Cap”     5.1   “Stock Price Threshold”     5.1   “Trigger Event”     4.6 (c) “Unissued Shares”     3.8 (a)      SECTION 1.3. TRUST INDENTURE ACT PROVISIONS.      Whenever this Indenture refers to a provision of the TIA, that provision is incorporated by reference in and made a part of this Indenture. The Indenture shall also include those provisions of the TIA required to be included herein by the provisions of the Trust Indenture Reform Act of 1990. The following TIA terms used in this Indenture have the following meanings:      “indenture securities” means the Securities;      “indenture security holder” means a Securityholder;      “indenture to be qualified” means this Indenture;      “indenture trustee” or “institutional trustee” means the Trustee; and “obligor” on the indenture securities means the Company or any other obligor on the Securities.      All other terms used in this Indenture that are defined in the TIA, defined by TIA reference to another statute or defined by any SEC rule and not otherwise defined herein have the meanings assigned to them therein.      SECTION 1.4. RULES OF CONSTRUCTION.      Unless the context otherwise requires:           (A) a term has the meaning assigned to it;           (B) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;           (C) words in the singular include the plural, and words in the plural include the singular;           (D) provisions apply to successive events and transactions; 7             (E) the term “merger” includes a statutory share exchange and the term “merged” has a correlative meaning;           (F) the masculine gender includes the feminine and the neuter;           (G) references to agreements and other instruments include subsequent amendments thereto; and           (H) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. ARTICLE 2 THE SECURITIES      SECTION 2.1. FORM AND DATING      The Securities and the Trustee’s certificate of authentication shall be substantially in the respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication. The Securities are being offered in an exchange transaction exempt from, or not subject to, the registration requirements of the Securities Act by the Company in exchange for an equal principal amount of the Company’s 1.5% Senior Convertible Notes due August 15, 2023 (the “Existing Securities”) tendered in exchange therefor by the holders thereof in an exchange transaction exempt from, or not subject to, the registration requirements of the Securities Act.      (a) Global Securities. Each Security issued in exchange for an Existing Security which at the time of exchange (i) bears CUSIP Number 303250 AA 2 shall be issued initially in the form of one or more Restricted Global Securities, and (ii) bears CUSIP Number 303250 AB 0 shall be issued initially in the form of one or more Unrestricted Global Securities, in each case of (i) and (ii) above, duly executed by the Company and authenticated by the Trustee as hereinafter provided, which shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, at its Corporate Trust Office, as custodian for the depositary, The Depository Trust Company (such depositary, or any successor thereto, being hereinafter referred to as the “Depositary”), and registered in the name of its nominee, Cede & Co. The aggregate principal amount of the Restricted Global Securities or Unrestricted Global Securities may from time to time be increased or decreased by adjustments made on the records of the Securities Custodian as hereinafter provided, subject in each case to compliance with the Applicable Procedures.      (b) Global Securities In General. Each Global Security shall represent such of the outstanding Securities as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect replacements, exchanges, redemptions, purchases or conversions of such Securities. Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.12 hereof and shall be made on the records of the Trustee and the Depositary. 8        Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or under the Global Security, and the Depositary or its nominee (including, for this purpose, its nominee) may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or (B) impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security.      (c) Book Entry Provisions. The Company shall execute and the Trustee shall, in accordance with this Section 2.1(c), authenticate and deliver initially one or more Global Securities that (i) shall be registered in the name of the Depositary or its nominee, (ii) shall be delivered by the Trustee to the Depositary or held by the Trustee as custodian for the Depositary, or otherwise pursuant to the Depositary’s instructions and (iii) shall bear legends substantially to the following effect: “UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO FAIR ISAAC CORPORATION (THE “COMPANY”) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”      SECTION 2.2. EXECUTION AND AUTHENTICATION.      An Officer shall sign the Securities for the Company by manual or facsimile signature attested by the manual or facsimile signature of the Secretary or an Assistant Secretary of the Company. Typographic and other minor errors or defects in any such facsimile signature shall not affect the validity or enforceability of any Security that has been authenticated and delivered by the Trustee.      If an Officer whose signature is on a Security no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless. 9        A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.      The Trustee shall authenticate and make available for delivery Securities for original issue in the aggregate principal amount of up to $399,674,000 upon receipt of a written order or orders of the Company signed by two Officers of the Company (a “Company Order”). The Company Order shall specify the amount of Securities to be authenticated, shall provide whether such Securities will be represented by a Restricted Global Security or an Unrestricted Global Security and the date on which each original issue of Securities is to be authenticated. The aggregate principal amount of Securities outstanding at any time may not exceed $399,674,000 except as provided in Section 2.7.      The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent shall have the same rights as an Agent to deal with the Company or an Affiliate of the Company.      The Securities shall be issuable only in registered form without coupons and only in denominations of $1,000 and any integral multiple thereof.      SECTION 2.3. REGISTRAR, PAYING AGENT AND CONVERSION AGENT.      The Company shall maintain one or more offices or agencies where Securities may be presented for registration of transfer or for exchange (each, a “Registrar”), one or more offices or agencies where Securities may be presented for payment (each, a “Paying Agent”), one or more offices or agencies where Securities may be presented for conversion (each, a “Conversion Agent”) and one or more offices or agencies where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will at all times maintain a Paying Agent, Conversion Agent, Registrar and an office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served in the Borough of Manhattan, The City of New York. One of the Registrars (the “Primary Registrar”) shall keep a register of the Securities and of their transfer and exchange.      The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or agent for service of notices and demands in any place required by this Indenture, or fails to give the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company may act as Paying Agent (except for the purposes of Section 6.1 and Article 10).      The Company hereby initially designates the Trustee, and the Trustee hereby accepts its designation, as Paying Agent, Registrar, Primary Registrar, Securities Custodian and Conversion Agent, and each of the Corporate Trust Office of the Trustee and the office or agency of the Trustee or any affiliate of the Trustee in the Borough of Manhattan, The City of New York, New York (which shall initially be Wells Fargo Corporate Trust, c/o The Depository Trust Company, 1st Floor – TADS Dept., 55 Water Street, New York, New York 10041, one such office or agency of the Company for each of the aforesaid purposes. 10        SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.      Prior to 12:00 p.m., New York City time, on each due date of the principal of or interest, if any, on any Securities, the Company shall deposit with a Paying Agent a sum sufficient to pay such principal or interest, if any, so becoming due. A Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money held by the Paying Agent for the payment of principal of or interest, if any, on the Securities, and shall notify the Trustee of any default by the Company (or any other obligor on the Securities) in making any such payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall, before 12:00 p.m., New York City time, on each due date of the principal of or interest on any Securities, segregate the money and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee, and the Trustee may at any time during the continuance of any default, upon written request to a Paying Agent, require such Paying Agent to pay forthwith to the Trustee all sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent (other than the Company) shall have no further liability for the money.      SECTION 2.5. SECURITYHOLDER LISTS.      The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Primary Registrar, the Company shall furnish to the Trustee on or before each semi-annual interest payment date and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders.      SECTION 2.6. TRANSFER AND EXCHANGE.      (a) Subject to compliance with any applicable additional requirements contained in Section 2.12, when a Security is presented to a Registrar with a request to register a transfer thereof or to exchange such Security for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested; provided, however, that every Security presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an assignment form and, if applicable, a transfer certificate each in the form included in Exhibit A, and in form satisfactory to the Registrar duly executed by the Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and exchanges, upon surrender of any Security for registration of transfer or exchange at an office or agency maintained pursuant to Section 2.3, the Company shall execute and the Trustee shall authenticate Securities of a like aggregate principal amount at the Registrar’s request. Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto, and provided, that this sentence shall not apply to any exchange pursuant to Section 2.7, 2.10, 2.12(a), 3.6, 3.12, 4.2(f) or 11.5.      Neither the Company, any Registrar nor the Trustee shall be required to exchange or register a transfer of (i) any Securities for a period of 15 days next preceding any mailing of a notice of Securities to be redeemed, (ii) any Securities or portions thereof selected or called for redemption (except, in the case of redemption of a Security in part, the portion thereof not to be redeemed) or (iii) any Securities or portions thereof in respect of which a Change in Control Purchase Notice has been delivered and not withdrawn by the Holder thereof (except, in the case of the purchase of a Security in part, the portion thereof not to be purchased). 11        All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.      (b) Any Registrar appointed pursuant to Section 2.3 hereof shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar of Securities upon transfer or exchange of Securities.      (c) Each Holder of a Security agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s Security in violation of any provision of this Indenture and/or applicable United States federal or state securities law.      The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or other beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.      SECTION 2.7. REPLACEMENT SECURITIES.      If any mutilated Security is surrendered to the Company, a Registrar or the Trustee, or the Company, a Registrar and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company, the applicable Registrar and the Trustee such security or indemnity as will be required by them to save each of them harmless, then, in the absence of notice to the Company, such Registrar or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute, exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount, bearing a number not contemporaneously outstanding.      In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, or is about to be redeemed, purchased or repurchased by the Company pursuant to Article 3, or converted pursuant to Article 4, the Company in its discretion may, instead of issuing a new Security, pay, redeem, purchase, repurchase or convert such Security, as the case may be.      Upon the issuance of any new Securities under this Section 2.7, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the reasonable fees and expenses of the Trustee or the Registrar) in connection therewith.      Every new Security issued pursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder. 12        The provisions of this Section 2.7 are (to the extent lawful) exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.      SECTION 2.8. OUTSTANDING SECURITIES.      Securities outstanding at any time are all Securities authenticated by the Trustee, except for those canceled by it, those delivered to it for cancellation and those described in this Section 2.8 as not outstanding.      If a Security is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Company receives, subsequent to the new Security’s authentication, proof satisfactory to the Company that the replaced Security is held by a bona fide purchaser.      If a Paying Agent (other than the Company or an Affiliate of the Company) holds on a Redemption Date, Repurchase Date, a Change in Control Purchase Date or the Final Maturity Date money sufficient to pay the principal of (including premium, if any) and accrued interest on Securities (or portions thereof) payable on that date, then on and after that date such Securities (or portions thereof, as the case may be) cease to be outstanding and interest on them ceases to accrue; provided that any notice of such redemption, repurchase or purchase has been given pursuant to this Indenture.      Subject to the restrictions contained in Section 2.9, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.      SECTION 2.9. TREASURY SECURITIES.      In determining whether the Holders of the required principal amount of Securities have concurred in any notice, direction, waiver or consent, Securities owned by the Company or any other obligor on the Securities or by any Affiliate of the Company or of such other obligor shall be disregarded, except that, for purposes of determining whether the Trustee shall be protected in relying on any such notice, direction, waiver or consent, only Securities which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to the Securities and that the pledgee is not the Company or any other obligor on the Securities or any Affiliate of the Company or of such other obligor.      SECTION 2.10. TEMPORARY SECURITIES.      Until definitive Securities are ready for delivery, the Company may prepare and execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company with the consent of the Trustee considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate and deliver definitive Securities in exchange for temporary Securities.      SECTION 2.11. CANCELLATION.      The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar, the Paying Agent and the Conversion Agent shall forward to the Trustee or its agent any Securities surrendered to them for transfer, exchange, redemption, purchase, repurchase, payment or conversion. The Trustee and no 13   one else shall promptly cancel, in accordance with its standard procedures, all Securities surrendered for transfer, exchange, redemption, payment, conversion or cancellation and shall dispose of the canceled Securities in accordance with its standard procedures and deliver certification that such Securities have been canceled to the Company. All Securities that are redeemed, purchased, repurchased or otherwise acquired by the Company or any of its Subsidiaries prior to the Final Maturity Date may be delivered to the Trustee for cancellation, or the Company may hold or resell such Securities; provided that all Securities delivered to the Trustee for cancellation may not be reissued or resold and shall be canceled promptly by the Trustee. Without limitation to the foregoing, any Securities acquired by any investment banks or other purchasers pursuant to Section 3.7 shall be surrendered for conversion and thereafter canceled, and may not be reoffered, sold or otherwise transferred.      SECTION 2.12. LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS.      (a) If Securities are issued upon the transfer, exchange or replacement of Securities subject to restrictions on transfer and bearing the legends called for by footnote 2 set forth on the forms of Securities attached hereto as Exhibit A setting forth such restrictions (collectively, the “Legend”), or if a request is made to remove the Legend on a Security, the Securities so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 under the Securities Act or that such Securities are not “restricted” within the meaning of Rule 144 under the Securities Act; provided that no such evidence need be supplied in connection with the sale of such Security pursuant to a registration statement that is effective at the time of such sale. Upon (i) provision of such satisfactory evidence if requested, or (ii) notification by the Company to the Trustee and Registrar of the sale of of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Security that does not bear the Legend. If the Legend is removed from the face of a Security and the Security is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.      (b) A Global Security may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person may be registered; provided that the foregoing shall not prohibit any transfer of a Security that is issued in exchange for a Global Security but is not itself a Global Security. No transfer of a Security to any Person shall be effective under this Indenture or the Securities unless and until such Security has been registered in the name of such Person. Notwithstanding any other provisions of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be made only in accordance with this Section 2.12.      (c) Subject to the succeeding paragraph, every Security issued in exchange for an Existing Security bearing CUSIP Number 303250 AA 2 shall initially be subject to the restrictions on transfer provided in the Legend. Whenever any Restricted Security other than a Restricted Global Security is presented or surrendered for registration of transfer or for exchange for a Security registered in a name other than that of the Holder, such Security must be accompanied by a certificate in substantially the form set forth in Exhibit A, dated the date of such surrender and signed by the Holder of such Security, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Security not so accompanied by a properly completed certificate. 14        (d) The restrictions imposed by the Legend upon the transferability of any Security shall cease and terminate when such Security has been sold pursuant to an effective registration statement under the Securities Act or transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision). Any Security as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Security for exchange to the Registrar in accordance with the provisions of this Section 2.12 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by, if requested by the Company or the Registrar, an Opinion of Counsel reasonably acceptable to the Company and the Registrar, addressed to the Company and the Registrar and in form acceptable to the Company and the Registrar, to the effect that the transfer of such Security has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Securities under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned Opinion of Counsel or registration statement.      (e) As used in the preceding two paragraphs of this Section 2.12, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security.      (f) The provisions of clauses (i), (ii), (iii), (iv) and (v) below shall apply only to Global Securities:      (i) Notwithstanding any other provisions of this Indenture or the Securities, a Global Security shall not be exchanged in whole or in part for a Security registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Security may be exchanged for Securities registered in the names of any person designated by the Depositary in the event that (A) the Depositary has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or such Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days, (B) the Company has provided the Depositary with written notice that it has decided to discontinue use of the system of book entry transfer through the Depositary or any successor Depositary or (C) an Event of Default has occurred and is continuing with respect to the Securities. Any Global Security exchanged pursuant to clauses (A) or (B) above shall be so exchanged in whole and not in part, and any Global Security exchanged pursuant to clause (C) above may be exchanged in whole or from time to time in part as directed by the Depositary. Any Security issued in exchange for a Global Security or any portion thereof shall be a Global Security; provided that any such Security so issued that is registered in the name of a Person other than the Depositary or a nominee thereof shall not be a Global Security.      (ii) Securities issued in exchange for a Global Security or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable legends provided for herein. Any Global Security to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Security to be exchanged in part, either such 15   Global Security shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Security, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.      (iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a holder is entitled to take under this Indenture or the Securities.      (iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Securities in definitive, fully registered form, without interest coupons.      (v) Neither Agent Members nor any other Persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a holder of any Security.      SECTION 2.13. CUSIP NUMBERS.      The Company in issuing the Securities may use one or more “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption or purchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption or purchase shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers. ARTICLE 3 REDEMPTION, PURCHASE AND REPURCHASE      SECTION 3.1. RIGHT TO REDEEM; NOTICE TO TRUSTEE.      The Securities may be redeemed at the election of the Company, as a whole or from time to time in part, at any time on or after August 15, 2008, at a redemption price equal to 100% of the principal amount of the Securities being redeemed, together with accrued and unpaid interest up to, but not including, the date selected by the Company for redemption of the Securities (such price the “Redemption Price” and such date 16   the “Redemption Date”); provided that if the Redemption Date occurs after a record date for the payment of interest and prior to the interest payment date related to such record date, interest will be payable to the Holders in whose names the Securities are registered on the Redemption Date.      If the Company elects to redeem Securities pursuant to this Section 3.1 and paragraph 5 of the Securities, it shall notify the Trustee at least 30 days (but no fewer than 20 days) prior to the Redemption Date as fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee) of the Redemption Date and the principal amount of Securities to be redeemed. If fewer than all of the Securities are to be redeemed, the record date relating to such redemption shall be selected by the Company and given to the Trustee, which record date shall not be less than ten days after the date of notice to the Trustee.      SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED.      If less than all of the Securities are to be redeemed, the Trustee shall, unless the procedures of the Depositary require otherwise, not fewer than 20 nor more than 60 days prior to the Redemption Date, select the Securities to be redeemed. The Trustee shall make the selection from the Securities outstanding and not previously called for redemption, by lot, on a pro rata basis, in such other manner as the Trustee deems appropriate or otherwise in accordance with the applicable procedures of the Depositary. Securities in denominations of $1,000 may only be redeemed in whole. The Trustee may select for redemption portions (equal to $1,000 or any integral multiple thereof) of the principal of Securities that have denominations larger than $1,000. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption.      If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed to be the portion selected for redemption. Securities that have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as outstanding for the purpose of such selection.      No sinking fund is provided for the Securities.      SECTION 3.3. NOTICE OF REDEMPTION.      At least 20 days but not more than 60 days before a Redemption Date, the Company shall mail or cause to be mailed a notice of redemption (a “Notice of Redemption”) to each Holder of Securities to be redeemed at such Holder’s address as it appears on the Primary Registrar’s books.      The Notice of Redemption shall identify the Securities (including CUSIP numbers) to be redeemed and shall state:           (1) the Redemption Date;           (2) the Redemption Price;           (3) the then current Conversion Price;           (4) the name and address of each Paying Agent and Conversion Agent; 17             (5) that Securities called for redemption must be presented and surrendered to a Paying Agent to collect the Redemption Price;           (6) that Holders who wish to convert Securities must surrender such Securities for conversion no later than the close of business on the Business Day immediately preceding the Redemption Date and must satisfy the other requirements in paragraph 9 of the Securities;           (7) that, unless the Company defaults in making the redemption payment, interest on Securities called for redemption shall cease accruing on and after the Redemption Date and the only remaining right of the Holder shall be to receive payment of the Redemption Price, plus accrued interest, if any upon presentation and surrender to a Paying Agent of the Securities; and           (8) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, upon presentation and surrender of such Security, a new Security or Securities in aggregate principal amount equal to the unredeemed portion thereof will be issued.      If any of the Securities to be redeemed is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to redemptions. At the Company’s written request given at least 30 days prior to the Redemption Date (unless a shorter period shall be satisfactory to the Trustee), which request shall (i) be irrevocable once given and (ii) set forth all relevant information required by clauses (1) through (8) of the preceding paragraph, the Trustee shall give the Notice of Redemption to each Holder in the Company’s name and at the Company’s expense.      SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.      Once the Notice of Redemption is mailed, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice, except for Securities that are converted in accordance with the provisions of Article 4. Upon presentation and surrender to a Paying Agent, Securities called for redemption shall be paid at the Redemption Price; provided that if the Redemption Date occurs after a record date for the payment of interest and prior to the interest payment date related to such record date, interest will be payable to the Holders in whose names the Securities are registered on the Redemption Date.      SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.      Prior to 12:00 p.m. New York City time, on the Redemption Date, the Company shall deposit with a Paying Agent (or, if the Company acts as Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of all Securities to be redeemed on that date, other than Securities or portions thereof called for redemption on that date which have been delivered by the Company to the Trustee for cancellation or have been converted. The Paying Agent shall return to the Company any money not required for that purpose because of the conversion of Securities pursuant to Article 4 or, if such money is then held by the Company in trust and is not required for such purpose, it shall be discharged from the trust. 18        SECTION 3.6. SECURITIES REDEEMED IN PART.      Upon presentation and surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Security equal in principal amount to the unredeemed portion of the Security surrendered.      SECTION 3.7. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.      In connection with any redemption of Securities, the Company may arrange for the purchase and conversion of any Securities called for redemption by an agreement with one or more investment banks or other purchasers to purchase such Securities by paying to a Paying Agent (other than the Company or any of its Affiliates) in trust for the Holders, on or before 12:00 p.m. New York City time on the Redemption Date, an amount that, together with any amounts deposited with such Paying Agent by the Company for the redemption of such Securities, is not less than the Redemption Price of such Securities. Notwithstanding anything to the contrary contained in this Article 3, the obligation of the Company to pay the Redemption Price of such Securities, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers; provided, however, that nothing in this Section 3.7 shall relieve the Company of its obligation to pay the Redemption Price on Securities called for redemption. If such an agreement with one or more investment banks or other purchasers is entered into, any Securities called for redemption and not surrendered for conversion by the Holders thereof prior to the relevant Redemption Date may, at the option of the Company upon written notice to the Trustee, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders and (notwithstanding anything to the contrary contained in Article 4) surrendered by such purchasers for conversion, all as of 12:00 p.m. New York City time on the Redemption Date, subject to payment of the above amount as aforesaid. The Paying Agent shall hold and pay to the Holders whose Securities are selected for redemption any such amount paid to it for purchase in the same manner as it would money deposited with it by the Company for the redemption of Securities. Without the Paying Agent’s prior written consent, no arrangement between the Company and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Paying Agent as set forth in this Indenture, and the Company agrees to indemnify the Paying Agent from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities between the Company and such purchasers, including the costs and expenses incurred by the Paying Agent in the defense of any claim or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture. CONTROL.      (a) If at any time that Securities remain outstanding there shall occur a Change in Control, Securities shall be purchased by the Company at the option of the Holders, as of the date that is 30 Business Days after the occurrence of the Change in Control (the “Change in Control Purchase Date”) at a purchase price equal to 100% of the principal amount of the Securities, plus accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the “Change in Control Purchase Price”), subject to satisfaction by or on behalf of any Holder of the requirements set forth in subsection (c) of this Section 3.8.      A “Change in Control” shall be deemed to have occurred if any of the following occurs after the date hereof: 19             (1) any “person” or “group” (as such terms are defined below) is or becomes the “beneficial owner” (as defined below), directly or indirectly, of shares of Voting Stock of the Company representing 50% or more of the total voting power of all outstanding classes of Voting Stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors of the Company; or           (2) the Company consolidates with, or merges with or into, another Person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the Persons that “beneficially owned” (as defined below), directly or indirectly, shares of Voting Stock of the Company immediately prior to such transaction “beneficially own” (as defined below), directly or indirectly, shares of Voting Stock of the Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving or transferee Person; or           (3) the holders of capital stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with the terms hereof). For the purpose of the definition of “Change in Control”, (i) “person” and “group” have the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act or any successor provisions, and the term “group” includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor provision thereto), (ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of shares of Voting Stock of the Company shall be deemed to include, in addition to all outstanding shares of Voting Stock of the Company and Unissued Shares (as defined below) deemed to be held by the “person” or “group” (as such terms are defined above) or other person with respect to which the Change in Control determination is being made, all Unissued Shares (as defined below) deemed to be held by all other persons, and (iii) the terms “beneficially owned” and “beneficially own” shall have meanings correlative to that of “beneficial owner.” The term “Unissued Shares” means shares of Voting Stock not outstanding that are subject to options, warrants, rights to purchase or conversion privileges exercisable within 60 days of the date of determination of a Change in Control.      Notwithstanding anything to the contrary set forth in this Section 3.8, a Change in Control will not be deemed to have occurred if either:           (X) after August 15, 2008, the Closing Sale Price of the Common Stock for any five Trading Days during the ten Trading Days immediately preceding the Change in Control is at least equal to 105% of the Conversion Price in effect on such Trading Day; or           (Y) in the case of a merger or consolidation, all of the consideration (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights in the merger or consolidation) in the merger or consolidation otherwise constituting the Change in Control consists of shares of common stock, depository receipts or other certificates representing common equity interests, traded on a United States national securities exchange or quoted on the Nasdaq National Market (or which will be so traded or quoted when issued or exchanged in connection with such Change in Control) and as a result of such transaction or transactions the Securities become convertible solely into such common stock, depository receipts or other certificates representing common equity interests or a cash amount based on the value of such common stock, depositary receipts or other certificates representing common equity interests or a 20   combination of such cash amount and such common stock, depository receipts or other certificates representing common equity interests.      (b) Within 10 Business Days after the occurrence of a Change in Control, the Company shall mail a written notice of the Change in Control to the Trustee and to each Holder (and to beneficial owners as required by applicable law). The notice shall include the form of a Change in Control Purchase Notice to be completed by the Holder and shall state:           (1) the date of such Change in Control and, briefly, the events causing such Change in Control and the terms and conditions thereof;           (2) the date by which the Change in Control Purchase Notice pursuant to this Section 3.8 must be given;           (3) the Change in Control Purchase Date;           (4) the Change in Control Purchase Price;           (5) the Holder’s right to require the Company to purchase the Securities;           (6) briefly, the conversion rights of the Securities;           (7) the name and address of each Paying Agent and Conversion Agent;           (8) the Conversion Price and any adjustments thereto;           (9) that Securities as to which a Change in Control Purchase Notice has been given may be converted pursuant to Article 4 of this Indenture only to the extent that the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture;           (10) the procedures that the Holder must follow to exercise rights under this Section 3.8;           (11) the procedures for withdrawing a Change in Control Purchase Notice, including a form of notice of withdrawal; and           (12) that the Holder must satisfy the requirements set forth in the Securities in order to convert the Securities.      If any of the Securities is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to the repurchase of Global Securities. At the Company’s expense and written request received not less than 5 Business Days after the occurrence of a Change in Control (unless a shorter period shall be satisfactory to the Trustee), the Trustee shall give notice of such Change in Control on behalf of the Company; provided, however, that in all cases the text of such notice shall be prepared by the Company.      (c) A Holder may exercise its rights specified in subsection (a) of this Section 3.8 upon delivery of a written notice (which shall be in substantially the form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the 21   Depositary’s customary procedures) of the exercise of such rights (a “Change in Control Purchase Notice”) to any Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date.      The delivery of such Security to any Paying Agent (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor.      The Company shall purchase from the Holder thereof, pursuant to this Section 3.8, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of the Indenture that apply to the purchase of all of a Security pursuant to Sections 3.8 through 3.14 also apply to the purchase of such portion of such Security.      Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the Change in Control Purchase Notice contemplated by this subsection (c) shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.9.      A Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written withdrawal thereof.      Anything herein to the contrary notwithstanding, in the case of Global Securities, any Change in Control Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.      SECTION 3.9. EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE.      Upon receipt by any Paying Agent of a properly completed Change in Control Purchase Notice and Securities from a Holder in accordance with Section 3.8(c), the Holder of the Security in respect of which such Change in Control Purchase Notice was given shall (unless such Change in Control Purchase Notice is withdrawn as specified below) thereafter be entitled to receive the Change in Control Purchase Price with respect to such Security. Such Change in Control Purchase Price shall be paid to such Holder promptly following the later of (a) the Change in Control Purchase Date with respect to such Security (provided the conditions in Section 3.8(c) have been satisfied) and (b) the time of delivery of such Security to a Paying Agent by the Holder thereof in the manner required by Section 3.8(c). Securities in respect of which a Change in Control Purchase Notice has been given by the Holder thereof may not be converted on or after the date of the delivery of such Change in Control Purchase Notice unless such Change in Control Purchase Notice has first been validly withdrawn.      A Change in Control Purchase Notice may be withdrawn by means of a written notice (which may be delivered by mail, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary’s customary procedures) of withdrawal delivered by the Holder to a Paying Agent at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date, specifying the principal amount of the Security or portion thereof (which must be a principal amount of 22   $1,000 or an integral multiple of $1,000 in excess thereof) with respect to which such notice of withdrawal is being submitted.      SECTION 3.10. DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE.      On or before 12:00 p.m. New York City time on the Change in Control Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent (other than the Company or an Affiliate of the Company) an amount of money (in immediately available funds if deposited on such Business Day) sufficient to pay the aggregate Change in Control Purchase Price of all the Securities or portions thereof that are to be purchased as of such Change in Control Purchase Date. The manner in which the deposit required by this Section 3.10 is made by the Company shall be at the option of the Company, provided that such deposit shall be made in a manner such that the Trustee or a Paying Agent shall have immediately available funds on the Change in Control Purchase Date.      If a Paying Agent holds, in accordance with the terms hereof, money sufficient to pay the Change in Control Purchase Price of any Security for which a Change in Control Purchase Notice has been tendered and not withdrawn in accordance with this Indenture then, on the Change in Control Purchase Date, such Security will cease to be outstanding and the rights of the Holder in respect thereof shall terminate (other than the right to receive the Change in Control Purchase Price as aforesaid). The Company shall publicly announce the principal amount of Securities purchased as a result of such Change in Control on or as soon as practicable after the Change in Control Purchase Date. DATES.      (a) The Holders may require the Company to repurchase any outstanding Securities for cash, in accordance with the provisions of paragraph 7 of the Securities, on August 15, 2007, August 15, 2008, August 15, 2013 or August 15, 2018 (each a “Repurchase Date”) at a purchase price per Security equal to 100% of the aggregate principal amount of the Security, together with any accrued and unpaid interest to, but not including, the applicable Repurchase Date (the “Repurchase Price”); provided that if such Repurchase Date is an interest payment date, interest on the Securities will be payable to the Holders in whose names the Securities are registered on such Repurchase Date.      (b) The Company shall give written notice of the applicable Repurchase Date by notice sent by first-class mail to the Trustee and to each Holder (at its address shown in the register of the Registrar) and to beneficial owners as required by applicable law, not less than 20 Business Days prior to each Repurchase Date (the “Repurchase Notice”). Each Repurchase Notice shall include a repurchase election notice, in substantially the form included in Exhibit A attached hereto (a “Repurchase Election Notice”), to be completed by a Securityholder. Each Repurchase Notice shall state:           (1) the Repurchase Price, the Repurchase Date and the Conversion Price in effect;           (2) the name and address of the Paying Agent and the Conversion Agent;           (3) that Securities as to which a Repurchase Notice has been given may be converted if they are otherwise convertible in accordance with Article 4 hereof and paragraph 9 of the Securities only to the extent that the Repurchase Election Notice has been withdrawn in accordance with the terms of this Indenture; 23             (4) that Securities must be surrendered to the Paying Agent to collect payment;           (5) that the Repurchase Price for any Security as to which a Repurchase Notice has been given and not withdrawn will be paid promptly following the later of the Repurchase Date and the time of surrender of such Security as described in subclause (4) above;           (6) the procedures the Holder must follow to exercise rights under this Section and a brief description of those rights;           (7) briefly, the conversion rights of the Securities;           (8) the procedures for withdrawing a Repurchase Election Notice (including pursuant to the terms of Section 3.11(d));           (9) that, unless the Company defaults in making payment on Securities for which a Repurchase Election Notice has been submitted, interest, if any, on such Securities will cease to accrue on and after the Repurchase Date; and           (10) the CUSIP number of the Securities.      If any of the Securities are to be redeemed in the form of a Global Security, the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to redemptions.      At the Company’s written request received not less than 25 Business Days prior to each Repurchase Date (unless a shorter period shall be satisfactory to the Trustee), the Trustee shall give such Repurchase Notice on behalf of the Company and at the Company’s expense; provided, however, that, in all cases, the text of such Repurchase Notice shall be prepared by the Company.      (c) Repurchases of Securities by the Company pursuant to this Section 3.11 shall be made, at the option of the Holder thereof, upon:           (1) delivery to the Paying Agent by the Holder of the Repurchase Election Notice at any time from the opening of business on the date that is 20 Business Days prior to the applicable Repurchase Date until the close of business on the fifth Business Day prior to such Repurchase Date stating:                (A) the certificate number of the Security which the Holder will deliver to be purchased;                (B) the portion (which may be 100%) of the principal amount of the Security which the Holder will deliver to be purchased, which portion must be in a principal amount of $1,000 or an integral multiple thereof; and                (C) that such Security shall be purchased as of the applicable Repurchase Date pursuant to the terms and conditions specified in paragraph 7 of the Securities and in this Section 3.11 of this Indenture.           (2) delivery of such Security to the Paying Agent at any time after delivery Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent. Delivery of such 24   Security shall be a condition to receipt by the Holder of the Repurchase Price therefor. The Repurchase Price shall be paid pursuant to this Section 3.11 only if the Security delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Election Notice, as determined by the Company.      (d) Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Election Notice contemplated by this Section 3.11 shall have the right to withdraw such Repurchase Election Notice at any time prior to the close of business on the second Business Day immediately preceding the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent specifying:           (1) the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted;           (2) the aggregate principal amount of the Security with respect to which such notice of withdrawal is being submitted; and           (3) the aggregate principal amount, if any, of such Security which remains subject to the original Repurchase Election Notice and which has been or will be delivered for purchase by the Company.      The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Election Notice or written notice of withdrawal thereof.      (e) On or before 12:00 p.m. (local time in The City of New York) on the applicable Repurchase Date, the Company shall deposit with the Trustee or with the Paying Agent (or if the Company or an Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an amount of money (in immediately available funds if deposited on such Repurchase Date) sufficient to pay the aggregate Repurchase Price of all the Securities or portions thereof which are to be purchased as of the applicable Repurchase Date. The manner in which the deposit required by this Section 3.11(e) is made by the Company shall be at the option of the Company; provided that such deposit shall be made in a manner such that the Trustee or a Paying Agent shall have immediately available funds on the applicable Repurchase Date. sufficient to pay the Repurchase Price of any Security for which a Repurchase Election Notice has been tendered and not withdrawn on the applicable Repurchase Date, then, on the applicable Repurchase Date, such Security will cease to be outstanding and interest will cease to accrue on such Security, whether or not the Security is delivered to the Paying Agent, and the rights of the Holder in respect thereof shall terminate (other than the right to receive the Repurchase Price as aforesaid) and interest will cease to accrue on such Security.      The Repurchase Price shall be paid to such Holder with respect to Securities for which a Repurchase Election Notice has been tendered and not withdrawn, subject to receipt of funds by the Paying Agent, promptly following the later of (x) the Repurchase Date with respect to such Security (provided the conditions in Section 3.11(c) have been satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 3.11(c). Securities in respect of which a Repurchase Election Notice has been given by the Holder thereof may not be converted pursuant to Article 4 hereof on or after the date of the delivery of such Repurchase Election Notice, unless the Securities are otherwise then convertible in accordance with Article 4 and such Repurchase Election Notice has first been validly withdrawn as specified in Section 3.11(d). 25   Section 3.11, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the purchase of all of a Security also apply to the purchase of such portion of such Security.      (f) There shall be no purchase of any Securities pursuant to this Section 3.11 if there has occurred (prior to, on or after as the case may be, the giving, by the Holders of such Securities, of the required Repurchase Election Notice) and is continuing an Event of Default (other than a default in the payment of the Repurchase Price). The Paying Agent will promptly return to the respective Holders thereof any Securities (x) with respect to which a Repurchase Election Notice has been withdrawn in compliance with this Indenture, or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Repurchase Price) in which case, upon such return, the Repurchase Election Notice with respect thereto shall be deemed to have been withdrawn.      SECTION 3.12. SECURITIES PURCHASED IN PART.      Any Security that is to be purchased or repurchased only in part shall be surrendered at the office of a Paying Agent and promptly after the Change in Control Purchase Date or the Repurchase Date, as the case may be, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities, of such authorized denomination or denominations as may be requested by such Holder, in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered that is not purchased or repurchased.      SECTION 3.13. COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES.      In connection with any offer to purchase or repurchase or any purchase or repurchase of Securities under Section 3.8 or 3.11, the Company shall (a) comply with Rule and Rule 14e-1 (or any successor to either such Rule), if applicable, under the Exchange Act, (b) file the related Schedule TO (or any successor or similar schedule, form or report) if required under the Exchange Act, and (c) otherwise comply with all federal and state securities laws in connection with such offer to purchase or purchase of Securities, all so as to permit the rights of the Holders and obligations of the Company under Sections 3.8 through 3.12 and 3.14 to be exercised in the time and in the manner specified therein.      SECTION 3.14. REPAYMENT TO THE COMPANY.      To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.10 or 3.11 exceeds the aggregate Change in Control Purchase Price or Repurchase Price, as applicable, together, in each case with interest, if any, thereon of the Securities or portions thereof that the Company is obligated to purchase or repurchase, then promptly after the Change in Control Purchase Date or Repurchase Date, the Trustee or a Paying Agent, as the case may be, shall return any such excess cash to the Company. 26   ARTICLE 4 CONVERSION      SECTION 4.1. CONVERSION PRIVILEGE.      (a) Subject to the further provisions of this Article 4, a Holder of a Security may convert the principal amount of such Security (or any portion thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof) into the Principal Return and Net Share Amount, if any, upon the occurrence of the conditions set forth in (1), (2), (3) or (4), below, during the time periods indicated therein, at the Conversion Price then in effect:           (1) Closing Sale Price Condition.                (A) A Holder may surrender any Securities held by such Holder for conversion (x) prior to August 15, 2021, during any fiscal quarter, if the Closing Sale Price of the Common Stock, for at least 20 Trading Days in the period of 30 consecutive Trading Days ending on the last day of the immediately preceding fiscal quarter, is more than 120% of the Conversion Price on each corresponding Trading Day or (y) at any time after the Closing Sale Price of the Common Stock on any date after August 15, 2021 through the Business Day immediately prior to the Final Maturity Date, is more than 120% of the then current Conversion Price; provided that for the purpose of Section 4.1(a)(1)(A)(x), the period from the first day of the fiscal quarter that includes August 15, 2021 to August 15, 2021 shall be deemed to be a fiscal quarter prior to August 15, 2021.                (B) The Conversion Agent, will, on behalf of the Company, determine if the Securities are convertible as a result of the Closing Sale Price of the Common Stock and notify the Company and the Trustee. The Conversion Agent shall make this determination and provide the appropriate notification (x) on and prior to August 15, 2021, on the first Trading Day of each fiscal quarter and (y) after August 15, 2021, on a daily basis.           (2) Trading Price Condition.                (A) A Holder may surrender its Securities for conversion, during the five consecutive Business Day period following any 10 consecutive Trading Day period in which the average of the Trading Prices for a Security was less than 98% of the average of the Closing Sale Prices of the Common Stock for such 10 Trading-Day period (the “Average Sale Price”) multiplied by the applicable Conversion Rate. If, however, on the Trading Day immediately preceding the Conversion Date, the Closing Sale Price of the Common Stock is greater than 100% of the Conversion Price but less than or equal to 120% of the Conversion Price, then Holders converting their Securities will receive cash with a value equal to 100% of the principal amount of the Securities being converted on the Conversion Date.                (B) The Trustee will determine the Trading Price after being requested to do so by the Company. However, the Company will have no obligation to make that request unless a Holder provides the Company with reasonable evidence that the Trading Price may be less than 98% of the Average Sale Price of the Common Stock multiplied by the applicable Conversion Rate for the applicable period. If a Holder provides such evidence, the Company will instruct the Trustee to determine the Trading Price of the Securities for the applicable period. 27             (3) Call for Redemption. A Holder may surrender for conversion any Securities called for redemption at any time prior to the close of business one Business Day prior to the Redemption Date, even if the Securities are not otherwise convertible at such time. If a Holder has already delivered a Repurchase Notice or a Change in Control Purchase Notice with respect to a Security at the time the call for redemption is made, however, the Holder may not surrender such Security for conversion until the Holder has withdrawn such notice in accordance herewith.           (4) Specified Corporate Transactions.                (A) Even if none of the conditions described in subsections (1), (2) and (3), above has occurred, if the Company elects to: (i) distribute to all holders of Common Stock rights or warrants entitling such holders to purchase, for a period expiring within 60 days, Common Stock at less than the Current Market Price (as determined in accordance with subsection 4.6(b)) at the time, or (ii) distribute to all holders of Common Stock, assets or debt securities of the Company, or rights or warrants to purchase the Company’s securities, which distribution has a per share value exceeding 10.0% of the Closing Sale Price of the Common Stock on the Trading Day preceding the declaration date for such distribution, then in either case (i) and (ii), the Company must notify the Holders at least 20 days prior to the ex-dividend date for such distribution. Once the Company has given such notice, Holders may surrender their Securities for conversion at any time until the earlier of the close of business on the Business Day prior to the ex-dividend date or the Company’s announcement that such distribution will not take place. No adjustment to the ability of a Holder to convert will be made if the Holder will otherwise participate in the distribution without conversion.                (B) In addition, if the Company is a party to a consolidation, merger or binding share exchange pursuant to which all or substantially all of the Common Stock would be converted into cash, securities or other property, a Holder may surrender Securities for conversion at any time from and after the date that is 15 days prior to the anticipated effective date of the transaction until 15 days after the actual date of such transaction. If the transaction also constitutes a Change in Control, the Holder can require the Company to purchase all or a portion of such Holder’s Securities, as described in Section 3.8.      (b) The number of shares of Common Stock issuable upon conversion of a Security, if any, shall be determined by dividing the principal amount of the Security or portion thereof surrendered for conversion by the Conversion Price in effect on the Conversion Date. The initial Conversion Price is set forth in paragraph 9 of the Securities and is subject to adjustment as provided in this Article 4.      Provisions of this Indenture that apply to conversion of all of a Security also apply to conversion of a portion of a Security.      A Holder of Securities is not entitled to any rights of a holder of Common Stock until such Holder has converted its Securities to Common Stock, and only to the extent such Securities are deemed to have been converted into Common Stock pursuant to this Article 4.      If a Security is called for redemption or submitted for purchase upon a Change in Control pursuant to Article 3, such conversion right shall terminate at the close of business on the Business Day immediately preceding the Redemption Date or Change in Control Purchase Date, as the case may be, for such Security or such earlier date as the Holder presents such Security for redemption or purchase (unless the Company shall default in making the redemption payment or Change in Control Purchase Price payment when due, in which case the conversion right shall terminate at the close of business on the date such default is cured and such Security is redeemed or purchased, as the case may be). 28        The Company will provide written notice to the Conversion Agent upon the occurrence of any of the conversion events specified in paragraph (a) of this Section 4.1 (other than Section 4.1(a)(1) and 4.1(a)(2)).      SECTION 4.2. CONVERSION PROCEDURE.      (a) To convert a Security, a Holder must (i) complete and manually sign the conversion notice on the back of the Security and deliver such notice to a Conversion Agent, (ii) surrender the Security (if in certificated form) to a Conversion Agent, (iii) furnish appropriate endorsements and transfer documents if required by a Registrar or a Conversion Agent, and (iv) pay any transfer or similar tax, if required. The date on which the Holder satisfies all of those requirements is the “Conversion Date.”      (b) Anything herein to the contrary notwithstanding, in the case of Global Securities, conversion notices may be delivered and such Securities may be surrendered for conversion in accordance with the Applicable Procedures as in      (c) To the extent the Company elects to satisfy any of its conversion obligations through delivery of shares of Common Stock, the person in whose name such Common Stock certificate is registered shall be deemed to be a stockholder of record on the Conversion Date; provided, however, that no surrender of a Security on any date when the stock transfer books of the Company shall be closed shall be effective to constitute the person or persons entitled to receive the shares of Common Stock upon such conversion as the record holder or holders of such shares of Common Stock on such date, but such surrender shall be effective to constitute the person or persons entitled to receive such shares of Common Stock as the record holder or holders thereof for all purposes at the close of business on the next succeeding day on which such stock transfer books are open; provided, further, that such conversion shall be at the Conversion Price in effect on the Conversion Date as if the stock transfer books of the Company had not been closed. Upon conversion of a Security, such person shall no longer be a Holder of such Security and the delivery by the Company of the Principal Return and Net Share Amount, if any, upon such conversion will be deemed to satisfy the Company’s obligation to pay the principal amount of, plus accrued and unpaid interest on, the Security. Upon conversion, accrued and unpaid interest will be deemed paid in full rather than canceled, extinguished or forfeited. No payment or adjustment will be made for dividends or distributions on shares of Common Stock issued upon conversion of a Security.      (d) Securities so surrendered for conversion (in whole or in part) during the period from the close of business on any regular record date to the opening of business on the next succeeding interest payment date (excluding Securities or portions thereof called for redemption on a Redemption Date, presented for purchase upon a Change in Control on a Change in Control Purchase Date or presented for repurchase on a Repurchase Date, as the case may be, during the period beginning at the close of business on a regular record date and ending at the opening of business on the first Business Day after the next succeeding interest payment date, or if such interest payment date is not a Business Day, the second such Business Day) shall also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such interest payment date on the principal amount of such Security then being converted, and such interest shall be payable to such registered Holder notwithstanding the conversion of such Security, subject to the provisions of this Indenture relating to the payment of defaulted interest by the Company. Except as otherwise provided in this Section 4.2, no payment or adjustment will be made for accrued interest on a converted Security, which will be deemed paid upon conversion. If the Company defaults in the payment of interest payable on such interest payment date, the Company shall promptly repay such funds to such Holder. 29        (e) Nothing in this Section shall affect the right of a Holder in whose name any Security is registered at the close of business on a record date to receive the interest payable on such Security on the related interest payment date in accordance with the terms of this Indenture and the Securities. If a Holder converts more than one Security at the same time, the amount of cash to be paid and the number of shares of Common Stock issuable upon the conversion, if any, shall be based on the aggregate principal amount of Securities converted.      (f) Upon surrender of a Security that is converted in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder, a new Security equal in principal amount to the unconverted portion of all Securities so surrendered.      (g) If an Event of Default has occurred and is continuing (other than an Event of Default in a cash payment upon conversion of the Securities), the Company may not pay cash upon conversion of any Security or a portion of a Security (other than cash for fractional shares). Any inability or failure to pay cash as a result of the terms of this Section 4.2(g) shall not result in a Holder being entitled to receive any shares of Common Stock or other equity that it would not otherwise be entitled to receive but for the application of this Section 4.2(g).      (h) Anything herein to the contrary notwithstanding, in the case of Global Securities, conversion notices may be delivered and such Global Securities may be surrendered for conversion in accordance with the Applicable Procedures as in      (i) The delivery to the Holder of the Principal Return and Net Share Amount, if any, upon conversion of a Security will be treated as a payment (in an amount equal to the sum of the then fair market value of such Principal Return and Net Share Amount, if any) on the Security for purposes of the U.S. Treasury regulations governing contingent payment debt instruments.      SECTION 4.3. FRACTIONAL SHARES.      The Company will not issue fractional shares of Common Stock upon conversion of Securities. In lieu thereof, the Company will pay the cash value of such fractional shares based upon the Closing Sale Price of the Common Stock on the Trading Day immediately prior to the Conversion Date.      SECTION 4.4. TAXES ON CONVERSION.      If a Holder converts a Security and receives part of the Conversion Value in shares of Common Stock, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of such shares of Common Stock upon such conversion. However, the Holder shall pay any such tax which is due because the Holder requests the shares to be issued in a name other than the Holder’s name. The Conversion Agent may refuse to deliver the certificate representing the Common Stock being issued in a name other than the Holder’s name until the Conversion Agent receives a sum sufficient to pay any tax which will be due because the shares are to be issued in a name other than the Holder’s name. Nothing herein shall preclude any tax withholding required by law or regulation.      SECTION 4.5. COMPANY TO PROVIDE STOCK.      All shares of Common Stock delivered upon conversion of the Securities shall be newly issued shares or shares issued out of treasury stock, shall be duly authorized, validly issued, fully paid and nonassessable and shall be free from preemptive rights and free of any lien or adverse claim. 30        The Company will endeavor promptly to comply with all federal and state securities laws regulating the offer and delivery of shares of Common Stock constituting Net Shares delivered upon conversion of Securities, if any, and will list or cause to have quoted such shares of Common Stock on each national securities exchange or on the Nasdaq National Market or other over-the-counter market or such other market on which the Common Stock is then listed or quoted; provided, however, that if rules of such automated quotation system or exchange permit the Company to defer the listing of such Common Stock until the first conversion of the Securities into such Common Stock in accordance with the provisions of this Indenture, the Company covenants to list such Common Stock issuable upon conversion of the Securities in accordance with the requirements of such automated quotation system or exchange at such time. Any Common Stock issued upon conversion of a Security hereunder which at the time of conversion was a Restricted Security will also be a Restricted Security.      SECTION 4.6. ADJUSTMENT OF CONVERSION PRICE.      (a) The conversion price as stated in paragraph 9 of the Securities (the “Conversion Price”) shall be adjusted from time to time by the Company as follows:           (1) Dividends, Distributions, Subdivisions and Combinations. In case the Company shall: (i) pay a dividend on its Common Stock in shares of Common Stock or make a distribution on its Common Stock in shares of Common Stock; or (ii) subdivide its outstanding Common Stock into a greater number of shares, or combine its outstanding Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it would have owned had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (1) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision or combination.           (2) Issuance of Rights or Warrants. In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock entitling them (for a period of not more than 60 days following such issuance) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share of Common Stock (as determined in accordance with subsection (b) of this Section 4.6) on the record date for the determination of stockholders (the “Rights Determination Date”) entitled to receive such rights or warrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such Rights Determination Date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such Rights Determination Date of shares of Common Stock so offered (or the aggregate conversion price of the convertible securities so offered, which shall be determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the conversion price per share of Common Stock pursuant to the terms of such convertible securities) would purchase at the Current Market Price per share (as defined in subsection (b) of this Section 4.6) of Common Stock on such Rights Determination Date, and of which the denominator shall be the number of shares of Common Stock outstanding on such Rights Determination Date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such Rights Determination Date. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants 31   shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued).           (3) Distributions of Capital Stock, Indebtedness or Other Assets.                (A) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of capital stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets, or rights or warrants (including securities of any person other than the Company but excluding: 4.6(a)(1), above;                     (ii) rights and warrants referred to in subsection 4.6(a)(2), above;                     (iii) dividends and distributions referred to in subsection 4.6(a)(4) below; and                     (iv) distribution of rights to all holders of Common Stock pursuant to the a Rights Plan or the detachment of such rights under the terms of such Rights Plan), then in such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price by a fraction of which the numerator shall be the Current Market Price per share (as defined in subsection (b) of this Section 4.6) of the Common Stock on the record date for the determination of stockholders entitled to receive such capital stock, evidences of indebtedness or other non-cash assets (the “Capital Stock Determination Date”), less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) on such Capital Stock Determination Date, of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Capital Stock Determination Date), and of which the denominator shall be the Current Market Price per share (as defined in subsection (b) of this Section 4.6) of the Common Stock on such Capital Stock Determination Date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the Capital Stock Determination Date.                (B) In the event the then fair market value (as so determined) of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such Capital Stock Determination Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of capital such rights or warrants such holder would have received had such holder converted each Security on such Capital Stock Determination Date. In the event that such distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 4.6(a)(3) by reference to the actual or when issued trading market for 32   any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock.           (4) Cash Dividends or Distributions.                (A) If the Company shall, by dividend or otherwise, make one or more dividends or distributions in cash during any fiscal quarter of the Company to all or substantially all holders of its Common Stock, in an aggregate amount that, together with the aggregate amount of all other cash dividends or distributions made during such fiscal quarter to all or substantially all holders of its Common Stock exceeds the product of $0.0133 (appropriately adjusted from time to time for any stock dividends on or subdivisions or combinations of the Common Stock) multiplied by the number of shares of Common Stock outstanding on the record date for determination of stockholders entitled to receive the dividend or distribution (the “Dividend Determination Date” and together with the Rights Determination Date and Capital Stock Determination Date, each a “Determination Date”) (excluding shares held in the treasury of the Company), then in such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the Dividend Determination Date by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock and the denominator of which shall be the Current Market Price per share of the Common Stock plus the amount per share of such dividend or distribution, to the extent it exceeds $0.0133 per share (appropriately adjusted from time to time for any stock dividends on or subdivisions or combinations of Common Stock). The adjustment will be made successively whenever any such event occurs.           (5) Tender Offer.                (A) In case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate delivered to the Trustee thereof) of any other consideration) that, together with the aggregate amount of:                     (i) any cash and the fair market value (as determined by the which shall be evidenced by an Officers’ Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made; and                     (ii) all cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made, exceeds an amount equal to 10.0% of the product of the Current Market Price per share of Common Stock (as determined in accordance with subsection (b) of this Section 4.6) as of the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”) multiplied by the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, then, immediately prior to 33   the opening of business on the day after the Expiration Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to close of business on the Expiration Date by a fraction of which the numerator shall be the product of the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price per share of the Section 4.6) on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration Time and the Current Market Price per share of Common Stock (as determined in accordance with subsection (b) of this Section 4.6) on the Trading Day next succeeding the Expiration Date, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 4.6(a)(5) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.6(a)(5).                (B) For purposes of this Section 4.6(a)(5), the term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.      (b) The term “Current Market Price” shall mean (i) for the purpose of any computation under subsection 4.1(a)(4), 4.6(a)(2), 4.6(a)(3) or 4.6(a)(5), the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily Closing Sale Prices for the 30 consecutive Trading Days commencing 45 Trading Days before the Determination Date or Expiration Date, as the case may be, and (ii) for the purpose of any computation under subsection 4.6(a)(4), the Current Market Price per share of Common Stock shall be deemed to be the average of the daily Closing Sale Prices per share of Common Stock for the first ten Trading Days from and including the first date that the Common Stock trades ex-dividend.      In the event of a Conversion Price adjustment pursuant to subsections 4.6(a)(3) or (4), above, the Conversion Price may not be adjusted to be less than $36.03 (the “Minimum Conversion Price”); notwithstanding the foregoing, in the event of a Conversion Price adjustment pursuant to subsections 4.6(a)(1), (2) or (5), above, the Minimum Conversion Price will be adjusted in proportion to such adjustment in the Conversion Price.      (c) Rights Plans.            (1) In the event that the Company implements a new preferred shares rights plan or any similar plan (a “Rights Plan”), or the Company’s current Rights Plan is still in effect, upon conversion of the Securities, to the extent that any such Rights Plan has been implemented and is still in effect upon such 34   conversion, the holders of Securities will receive, in addition to any Common Stock which they receive upon conversion, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.6. If at the time a Holder converts its Securities or until the end of the Applicable Conversion Reference Period the rights have previously detached from the Common Stock and the Applicable Stock Price has been adversely impacted in a manner such that the value of the Principal Return and Net Share Amount, if any, received by a Holder upon conversion is inconsistent with the purpose of this provision, then the Applicable Stock Price shall be the fair value of a share of Common Stock as reasonably determined in good faith by the Board of Directors (whose determination shall be conclusive), adjusted appropriately to reflect the value of the rights.           (2) Rights or warrants (or other rights issued pursuant to a Rights Plan) distributed by the Company to all holders of Common Stock entitling the Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.6 (and no adjustment to the Conversion Price under this Section 4.6 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Price shall be made under this Section 4.6. If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 4.6 was made, (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued.      (d) In any case in which this Section 4.6 shall require that an adjustment be made following a record date or a Determination Date or Expiration Date, as the case may be, established for purposes of this Section 4.6, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.9) issuing to the Holder of any Security converted after such record date or Determination Date or Expiration Date the shares of Common Stock and other capital stock of the Company issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the 35   Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the Company of the right to receive such shares. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date or Determination Date or Expiration Date therefor is not thereafter made or paid by the Company for any reason, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or such effective date or Determination Date or Expiration Date had not occurred.      SECTION 4.7. NO ADJUSTMENT.      No adjustment in the Conversion Price shall be required unless the adjustment would require an increase or decrease of at least 1% in the Conversion Price as last adjusted; provided, however, that any adjustments which by reason of this Section 4.7 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article 4 shall be made to the nearest one-hundredth of a cent or to the nearest one-ten-thousandth of a share, as the case may be.      Except pursuant to Section 4.6 and 4.7, no adjustment need be made for issuances of Common Stock or any securities convertible or exchangeable for Common Stock or the right to purchase Common Stock or such convertible or exchangeable securities, including pursuant to a Company plan for reinvestment of dividends or interest or for a change in the par value or a change to no par value of the Common Stock.      To the extent that the Securities become convertible into the right to receive cash, no adjustment need be made thereafter as to the cash. Interest will not accrue on the cash.      No adjustment to the Conversion Price will be made to account for accrued interest or Contingent Interest.      SECTION 4.8. ADJUSTMENT FOR TAX PURPOSES.      The Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by Section 4.6, as it in its discretion shall determine to be advisable in order that any stock dividends, subdivisions of shares, distributions of rights to purchase stock or securities or distributions of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable.      SECTION 4.9. NOTICE OF ADJUSTMENT.      Whenever the Conversion Price or conversion privilege is adjusted, the Company shall promptly mail to Securityholders a notice of the adjustment and file with the Trustee an Officers’ Certificate briefly stating the facts requiring the adjustment and the manner of computing it. Unless and until the Trustee shall receive an Officers’ Certificate setting forth an adjustment of the Conversion Price, the Trustee may assume without inquiry that the Conversion Price has not been adjusted and that the last Conversion Price of which it has knowledge remains in effect.      SECTION 4.10. NOTICE OF CERTAIN TRANSACTIONS.      In the event that:           (1) the Company takes any action which would require an adjustment in the Conversion Price; 36             (2) the Company consolidates or merges with, or transfers all or substantially all of its property and assets to, another corporation and shareholders of the Company must approve the transaction; or           (3) there is a dissolution or liquidation of the Company, the Company shall mail to Holders and file with the Trustee a notice stating the proposed record or effective date, as the case may be. The Company shall mail the notice at least ten days before such date. Failure to mail such notice or any defect therein shall not affect the validity of any transaction referred to in clause (1), (2) or (3) of this Section 4.10. CONVERSION PRIVILEGE.      If any of the following shall occur, namely: (a) any reclassification or change of shares of Common Stock issuable upon conversion of the Securities (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination, or any other change for which an adjustment is provided in Section 4.6); (b) any consolidation or merger or combination to which the Company is a party other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination) in, outstanding shares of Common Stock; or (c) any sale or conveyance as an entirety or substantially as an entirety of the property and assets of the Company, directly or indirectly, to any Person, then the Company, or such successor, purchasing or transferee Person, as the case may be, shall, as a condition precedent to such reclassification, change, combination, consolidation, merger, sale or conveyance, execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then outstanding shall have the right, subject to Section 4.14, to convert such Security into the kind and amount of shares of stock and other securities and property (including cash) receivable upon such reclassification, change, combination, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock deliverable upon conversion of such Security (if such Security were convertible into shares of Common Stock instead of into the Principal Return and Net Share Amount) immediately prior to such reclassification, change, combination, consolidation, merger, sale or conveyance. Such supplemental indenture shall provide for adjustments of the Conversion Price and other provisions (including related defined terms and Section 4.14) , which shall be as nearly equivalent as may be practicable to the adjustments of the Conversion Price and other provisions (including related defined terms and Section 4.14) provided for in this Article 4. If, in the case of any such consolidation, merger, combination, sale or conveyance, the stock or other securities and property (including cash) receivable thereupon by a holder of Common Stock include shares of stock or other securities and property of a Person other than the successor, purchasing or transferee Person, as the case may be, in such consolidation, merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 4.11 shall similarly apply to successive reclassifications, changes, combinations, consolidations, mergers, sales or conveyances.      In the event the Company shall execute a supplemental indenture pursuant to this Section 4.11, the Company shall promptly file with the Trustee (x) an Officers’ Certificate briefly stating the reasons therefor, the kind or amount by Holders of the Securities upon the conversion of their Securities after any such reclassification, change, combination, consolidation, merger, sale or conveyance, any adjustment to be made with respect thereto and that all 37   conditions precedent have been complied with and (y) an Opinion of Counsel that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders.      SECTION 4.12. TRUSTEE’S DISCLAIMER.      The Trustee shall have no duty to determine when an adjustment under this Article 4 should be made, how it should be made or what such adjustment should be, but may accept as conclusive evidence of that fact or the correctness of any such adjustment, and shall be protected in relying upon, an Officers’ Certificate including the Officers’ Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 4.9. The Trustee makes no representation as to the validity or value of any securities or assets issued upon conversion of Securities, and the Trustee shall not be responsible for the Company’s failure to comply with any provisions of this Article 4.      The Trustee shall not be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture executed pursuant to Section 4.11, but may accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying upon, the Officers’ Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 4.11.      SECTION 4.13. VOLUNTARY REDUCTION.      The Company from time to time may reduce the Conversion Price by any amount for any period of time if the period is at least 20 days and if the reduction is irrevocable during such period (i) if the Board of Directors determines that such reduction would be in the best interest of the Company or to avoid or diminish income tax to holders of shares of Common Stock in connection with a dividend or distribution of stock or similar event, and (ii) the Company provides 15 days prior notice of any reduction in the Conversion Price; provided, however, that in no event may the Company reduce the Conversion Price to be less than the par value of a share of Common Stock.      SECTION 4.14. PAYMENT UPON CONVERSION      (a) Subject to Article 5, Section 4.1(a)(2) and Section 4.6(c)(1), if a Holder surrenders its Securities for conversion, the Company shall deliver (the “Conversion Obligation”), in respect of each $1,000 principal amount of Securities surrendered for conversion:      (i) cash in an amount (the “Principal Return”) equal to the lesser of (A) the principal amount of such Security and (B) the Conversion Value; and      (ii) if the Conversion Value is greater than the principal amount of each Security, a number of shares of Common Stock (the “Net Shares”) equal to the sum of the Daily Share Amounts for each Trading Day during the Applicable Conversion Reference Period (the “Net Share Amount”); provided that, in lieu of the delivery of Net Shares, the Company may, at its option, deliver cash or a combination of cash and shares of Common Stock with a value equal to the value of the Net Share Amount.      The Daily Share Amounts shall be calculated using the Closing Sale Price of the Common Stock on each Trading Day. References herein to “Net Share Amount” shall be deemed to be references to such amount in cash or combination of cash and Common Stock, as applicable. The value of the Net Share Amount shall equal the sum of the Daily Share Amount for each Trading Day during the Applicable 38   Conversion Reference Period multiplied by such day’s Closing Sale Price. The Company shall pay cash in lieu of fractional Net Shares issuable upon conversion determined in accordance with Section 4.3.      The Conversion Value, Principal Return and Net Share Amount will be determined by the Company promptly after the end of the Applicable Conversion Reference Period. The Company will pay the Principal Return and cash for fractional shares and deliver and/or pay the Net Share Amount, as applicable, no later than the third Business Day following the determination of the Applicable Stock Price. The Company will not issue fractional shares upon conversion. In the event that any of the Conversion Value, Daily Share Amounts or Closing Price, or the number of Net Shares to be issued and amount of cash to be paid in respect of the Net Shares, is not calculable for all portions of the Applicable Conversion Reference Period or the calculations do not produce results consistent with the purpose of this provision, the Company’s Board of Directors shall in good faith determine (whose determination shall be conclusive) the values and algorithms necessary to calculate the Conversion Value, Daily Shares Amounts, and Closing Price, as applicable.      In the event of a conversion upon a Change in Control transaction where the calculation of the Daily Share Amount would not be possible because the Company’s Common Stock has ceased to be publicly traded, if Holders of Common Stock receive only cash in such transaction, the Closing Sale Price will be the cash amount paid per share. Otherwise, the Closing Sale Price will be the average of the Closing Sale Prices of the Company’s Common Stock on each of the ten consecutive Trading Days immediately prior to, but not including, the effective date of such Change in Control.      In the event of a stock split, combination, dividend or any other event resulting in a Conversion Price adjustment pursuant to Section 4.6(a) during the Applicable Conversion Reference Period, appropriate adjustment to the equation for calculating Conversion Value and Net Share Amount shall be made, as determined by the Board of Directors of the Company.      (b) In the event a Holder converts its Securities in connection with a Change in Control at any time during the period beginning on the date that the Company gives a Make-Whole Premium Upon Conversion Notice and ending on the close of business on the second Trading Day immediately preceding the Change in Control Purchase Date for such Change in Control, such Holder will receive:      (i) the consideration described in Section 4.14(a); plus      (ii) if such Change in Control occurs prior to August 15, 2008, the Make-Whole Premium, if any, in an amount and in a form, and payable on the relevant date, as determined pursuant to Article 5.      (c) Notwithstanding Section 4.14(b), in the case of a Public Acquirer Change in Control, the Company may, in substitution of providing the consideration described in Section 4.14(b), elect to change the Conversion Obligation in connection with such Public Acquirer Change in Control by providing notice to Holders and the Trustee of such election (a “Public Acquirer Change in Control Notice”) not less than 10 Trading Days prior to the anticipated effective date of a Public Acquirer Change in Control known to the Company (or, if not known to the Company prior to such tenth Trading Day, within two Trading Days of when the Company becomes aware of such Public Acquirer Change in Control). In the event the Company provides such Public Acquirer Change in Control Notice, from and after the effective date of such Public Acquirer Change in Control, Holders of Securities will be entitled to convert their Securities, subject to this Section 4.14, into cash and shares of Public Acquirer Common Stock (as defined below) based on an adjusted 39   Conversion Price determined by dividing the Conversion Price in effect immediately before the Public Acquirer Change in Control by a fraction:      (i) the numerator of which will be (x) in the case of a share exchange, consolidation or merger pursuant to which the Common Stock is converted into cash, securities or other property the average value of all cash and other consideration (as determined by the Board of Directors) paid or payable per share of Common Stock in connection with such Public Acquirer Change in Control or (y) in the case of any other Public Acquirer Change in Control, the average of the Closing Sale Prices of the Common Stock, in each case for the five consecutive Trading Days prior to but excluding either (A) the effective date of such Public Acquirer Change in Control or (B) if later, the sixth Trading Day after the date a Public Acquirer Change in Control Notice is given, and      (ii) the denominator of which will be the average of the Closing Sale Prices of the Public Acquirer Common Stock for the five consecutive Trading Days prior to, but excluding, either (i) the effective date of such Public Acquirer Change in Control or (y) if later, the sixth Trading Day after the date a Public Acquirer Change in Control Notice is given.      In the event the Company has provided a Public Acquirer Change in Control Notice, Holders shall, during the time periods for conversion specified under Section 4.1(a)(4)(B), have the right to convert their Securities (subject to satisfaction of the conditions to conversion in Section 4.1 and subject to the change in conversion rights that become effective on the effective date of a Public Acquirer Change in Control), and will be entitled to receive the Conversion Obligation pursuant to Section 4.14(a); provided, however, that such Holders shall not be entitled to receive the Make-Whole Premium. In addition, Holders may also require the Company to repurchase all or a portion of their Securities as provided in Section 3.8. In the event the Company has provided a Public Acquirer Change in Control Notice, any Holder that does not elect to convert its Securities prior to the effective date of the applicable Public Acquirer Change in Control will (unless such Securities are repurchased on such Change in Control Purchase Date) thereafter hold Securities convertible at any time into cash and shares of Public Acquirer Common Stock, if any, at the adjusted Conversion Price specified in this Section 4.14(c). On and after the effective date of such Public Acquirer Change in Control, the relevant Public Acquirer Change in Control will not constitute a Change in Control for purposes of determining the Conversion Value, Net Share Amount or Principal Return.      On or prior to the effective date of such Public Acquirer Change in Control, the acquirer shall enter into an indenture supplement hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, expressly assuming and implementing the performance of this Section 4.14(c) by such acquirer and modifying such other provisions of this Indenture as may be necessary or appropriate in connection with such Public Acquirer Change in Control.      “Public Acquirer Change in Control” means any event constituting a Change in Control and the acquirer has a class of common stock traded on a U.S. national securities exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a transaction constituting a Change in Control (the “Public Acquirer Common Stock”). If an acquirer does not itself have a class of common stock satisfying the foregoing requirement, it will be deemed to have “Public Acquirer Common Stock” if either (1) a direct or indirect majority owned subsidiary of the acquirer or (2) a corporation that directly or indirectly owns at least a majority of the acquirer, has a class of common stock satisfying the foregoing requirement. In such case, all references to Public Acquirer Common Stock shall 40   refer to such class of common stock. Majority owned for these purposes means having “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of all shares of the respective entity’s capital stock that are entitled to vote generally in the election of directors. ARTICLE 5 MAKE-WHOLE PREMIUM      SECTION 5.1. MAKE-WHOLE PREMIUM.      (a) If a Change in Control occurs prior to August 15, 2008, the Company shall pay the Make-Whole Premium to Holders of the Securities who convert their Securities at any time during the period beginning on the date that the Company provides the Make-Whole Premium Upon Conversion Notice and ending at 5:00 p.m., New York City time, on the second Trading Day immediately preceding the Change in Control Purchase Date; provided, however, that no payment of the Make-Whole Premium will be made (i) in the case of a Change in Control if at least 90% of the consideration paid or payable for the Company’s Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Change in Control transaction consists of shares of Capital Stock traded on the New York Stock Exchange or another U.S. national securities exchange or quoted on The Nasdaq Stock Market or a successor automated over-the-counter trading market in the United States (or that will be so traded or quoted immediately following the transaction), or (ii) if the Company has provided a Public Acquirer Change in Control Notice as described in Section 4.14(c). The Make-Whole Premium will be in addition to, and not in substitution for, any cash, securities or other assets otherwise due to Holders of Securities upon conversion as described in this Indenture.      The Company shall mail a written notice to the Trustee and each Holder (and to beneficial owners as required by law) (i) at least ten Trading Days prior to the anticipated effective date of a Change in Control known to the Company that gives rise to the obligation to pay the Make-Whole Premium (or if not known to the Company prior to such tenth Trading Day, then within two Trading Days after the Company becomes aware of such Change in Control) of such anticipated effective date, which shall state that, as a result, Holders of Securities shall be entitled to the Make-Whole Premium (the “Make-Whole Premium Upon Conversion Notice”) upon conversion as described in Section 5.1(a) and (ii) within 15 days after such Change in Control has become effective (the “Change in Control Company Notice”); provided, however, that the Company shall not provide a Make-Whole Premium Upon Conversion Notice (i) if at least 90% of the consideration paid or payable for the Company’s Common Stock (excluding cash Section 4.14(c).      In the event the Company does not provide the Make-Whole Premium Upon Conversion Notice within 10 Business Days after the occurrence of a Change in Control in which the Make-Whole Premium would be payable, the Company shall be deemed, for purposes of the first sentence of the first paragraph of Section 5.1(a), to have provided such notice on the tenth Business Day after the occurrence of such Change in Control. 41        (b) The make-whole premium (the “Make-Whole Premium”) for each $1,000 principal amount of Securities shall be equal to an amount determined by multiplying (x) the percentage determined by reference to the table below based on the Effective Date and Share Price by (y) $1,000.      (i) “Effective Date” means the date that a Change in Control becomes effective.      (ii) “Stock Price” means the price paid (or deemed to be paid) per share of Common Stock in the transaction constituting the Change in Control, determined as follows:                (A) if holders of the Common Stock receive only cash in the Change in Control, the Stock Price shall be the cash amount paid per share of Common Stock; or                (B) otherwise, the Stock Price shall be the average Closing Sale Price of the Common Stock for the five Trading Days immediately preceding, but not including, the Effective Date.      (iii) The following table (the “Make-Whole Premium Table”) sets forth the hypothetical Stock Price, Effective Date and percentage (to be applied to each $1,000 principal amount of Securities) for determining the Make-Whole Premium upon a Change in Control. The Stock Prices set forth in the first column of the table are subject to adjustment in accordance with Section 5.2. Make-Whole Premium Applicable to the Securities Upon Change in Control (Percentage of Principal Amount)                                               February 25,     August 15,     August 15,     August 15,     August 15,       2005     2005     2006     2007     2008   $32.50     26.1       26.1       26.1       26.1       26.1   $35.00     22.8       22.6       22.1       20.4       20.4   $40.00     17.8       17.3       15.8       12.9       9.0   $45.00     14.1       13.3       11.2       7.9       0.0   $50.00     11.3       10.4       8.0       4.7       0.0   $55.00     9.2       8.2       5.9       2.8       0.0   $60.00     7.6       6.6       4.4       1.7       0.0   $65.00     6.4       5.5       3.4       1.1       0.0   $70.00     5.5       4.6       2.8       0.8       0.0   $75.00     4.8       4.0       2.3       0.6       0.0   $80.00     4.3       3.5       2.0       0.6       0.0   $85.00     3.8       3.2       1.8       0.5       0.0   $90.00     3.5       2.9       1.6       0.5       0.0   $95.00     3.2       2.7       1.5       0.5       0.0   $100.00     3.0       2.5       1.4       0.4       0.0   $110.00     2.7       2.2       1.3       0.4       0.0   $120.00     2.4       2.0       1.2       0.4       0.0   $130.00     2.2       1.8       1.1       0.3       0.0   $140.00     2.0       1.7       1.0       0.3       0.0   $150.00     1.8       1.5       0.9       0.3       0.0        The exact Stock Price and Effective Dates may not be set forth on the Make-Whole Premium Table, in which case: 42     •   if the Stock Price is between two Stock Prices on the table or the Effective Date is between two Effective Dates on the table, the Make-Whole Premium shall be determined by straight-line interpolation between the Make-Whole Premium amounts set forth for the higher and lower Stock Prices and the two Effective Dates, as applicable, based on a 365- or 366-day year, as applicable;     •   if the Stock Price is less than $32.50 (subject to adjustment in accordance with to Section 5.2) (the “Stock Price Threshold”), no Make-Whole Premium will be paid; and     •   if the Stock Price is in excess of $150.00 (subject to adjustment in accordance with Section 5.2) (the “Stock Price Cap”), no Make-Whole Premium will be paid.      (c) The Company shall pay the Make-Whole Premium solely in shares of Common Stock (other than cash paid in lieu of fractional shares) or in the same form of consideration into which all or substantially all of the shares of Common Stock have been converted or exchanged in connection with the Change in Control (other than cash paid in lieu of fractional interests in any security or other property delivered in connection with such Change in Control) on the Change in Control Purchase Date for the Securities after the Change in Control as provided in Section 3.8. If holders of the Common Stock receive or have the right to receive more than one form of consideration in connection with such Change in Control, then, for purposes of the foregoing, the forms of consideration in which the Make-Whole Premium shall be paid shall be in proportion to the relative value, determined in accordance with Section 5.1(d), of the different forms of consideration paid to holders of Common Stock in connection with such Change in Control.      (d) The value of the shares of Common Stock or other consideration for purposes of determining the number of shares of Common Stock or other consideration to be issued or delivered, as the case may be, in respect of the Make-Whole Premium shall be calculated as follows:      (i) in the case of a Change in Control in which all or substantially all of the shares of Common Stock have been, as of the Effective Date, converted into or exchanged for the right to receive securities or other assets or property (including cash), the consideration shall be valued as follows:      (A) securities that are traded on a U.S. national securities exchange or approved for quotation on the Nasdaq National Market or any similar system of automated dissemination of quotations of securities prices shall be valued at 98% of the average Closing Sale Price for the five Trading Days immediately prior to but excluding the Change in Control Purchase Date,      (B) other securities, assets or property (other than cash) that holders will have the right to receive shall be valued based on 98% of the average of the fair market value of such securities, assets or property (other than cash) as determined on the Business Day immediately prior to the Change in Control Purchase Date by two independent nationally recognized investment banks selected by the Trustee, and      (C) 100% of any cash.      (ii) in all other cases, the value of each share of Common Stock shall equal 98% of the average of the Closing Sale Prices of the Common Stock for the five consecutive Trading Days immediately prior to but excluding the Change in Control Purchase Date. 43        (e) A Calculation Agent appointed from time to time by the Company shall, on behalf of and on request by the Company, calculate (A) the Stock Price and (B) the Make-Whole Premium with respect to such Stock Price, based on the Effective Date specified by the Company, and shall deliver its calculation of the Stock Price and Make-Whole Premium to the Company and the Trustee within three Business Days of the request by the Company or the Trustee. In addition, the Calculation Agent shall, on behalf of and upon request by the Company or the Trustee, make the determinations described in Section 5.1(d)(i) and 5.1(d)(ii) above and deliver its calculations to the Company or the Trustee by 9:00 p.m., New York City time, on the Business Day immediately prior to the Change in Control Purchase Date. The Company or, at the Company’s request, the Trustee, in the name and at the expense of the Company, shall notify the Holders in accordance with Section 12.2 on the Change in Control Purchase Date of (x) the Make-Whole Premium per $1,000 principal amount of Securities and (y) the number of shares of Common Stock (or such other securities, assets or property (including cash) into which all or substantially all of the shares of Common Stock have been converted as of the Effective Date as described above) to be paid in respect of the Make-Whole Premium in connection with such Change in Control, in the manner provided in this Indenture. Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. The Company shall verify, in writing, to the Trustee all calculations made by the Calculation Agent pursuant to this Section 5.1(e). A Calculation Agent shall have the same rights as an Agent to deal with the Company or an Affiliate of the Company. The Trustee shall not be responsible for any of the aforementioned calculations and shall be entitled to rely on an Officer’s Certificate with respect to the same.      (f) For purposes of determining whether at least 90% of the consideration paid or payable for the Company’s Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Change in Control transaction consists of shares of Capital Stock traded on the New York Stock Exchange or another U.S. national securities exchange or quoted on The Nasdaq Stock Market or a successor automated over-the-counter trading market in the United States (or that will be so traded or quoted immediately following the transaction), the value of the consideration received by holders of the Company’s Common Stock in any Change in Control shall be calculated as follows:      (i) securities that are traded on a U.S. national securities exchange or 100% of the volume weighted average price of such securities for the five Trading Days immediately prior to but excluding the public announcement of such Change in Control; and      (ii) other securities, assets or property (other than cash) that holders will have the right to receive shall be valued based on a determination as to their value by two independent nationally recognized investment banks or appraisal firms, as appropriate, selected by the Company; and      (iii) 100% of any cash.      (g) On or prior to the Change in Control Purchase Date, the Company shall deposit with the Trustee or with one or more Paying Agents (or, if the Company or an Affiliate of the Company is acting as the Paying Agent, set aside, segregate and hold in trust) an amount of shares of Common Stock (or, in the case of a Change in Control in which all or substantially all of the shares of Common Stock have been, as of the Effective Date, converted into or exchanged for the right to receive securities or other assets or property (including cash), an amount of such other securities or other assets or property (including cash)) sufficient to pay the Make-Whole Premium with respect to all the Securities converted in connection with such Change in 44   Control; provided, however, that, if such payment is made on the Change in Control Purchase Date, it must be received by the Trustee or Paying Agent, as the case may be, by 12:00 p.m., New York City time, on that Change in Control Purchase Date. Payment of the Make-Whole Premium for Securities surrendered for conversion within the period described in Section 3.8 shall be made promptly on the Change in Control Purchase Date by delivering in accordance with Section 12.2 checks in respect of cash and otherwise delivering entitlements to securities, other assets or property for the amount payable to the Holders of such Securities entitled thereto as they shall appear in the Register.      SECTION 5.2. ADJUSTMENTS RELATING TO MAKE-WHOLE PREMIUM.      Whenever the Conversion Price shall be adjusted from time to time by the Company pursuant to Section 4.6, the Stock Price Threshold and the Stock Price Cap shall be adjusted and each of the Stock Prices set forth in the Additional Premium Table shall be adjusted. The adjusted Stock Price Threshold, Stock Price Cap and Stock Prices set forth in the Additional Premium Table shall equal the Stock Price Threshold, Stock Price Cap and such Stock Prices, as the case may be, applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment and the denominator of which is the Conversion Rate, as adjusted. In the event that any of the Stock Prices, Stock Price Threshold or Stock Price Cap is not calculable or the calculations do not produce results consistent with the purpose of this provision, the Company’s Board of Directors shall in good faith determine (whose determination shall be conclusive) the values and algorithms necessary to determine the Stock Price, Stock Price Threshold and Stock Price Cap, as applicable. ARTICLE 6 COVENANTS      SECTION 6.1. PAYMENT OF SECURITIES.      The Company shall promptly make all payments in respect of the Securities on the dates and in the manner provided in the Securities and this Indenture. An installment of principal or interest (including Contingent Interest) shall be considered paid on the date it is due if the Paying Agent (other than the Company) holds by 12:00 p.m., New York City time, on that date money, deposited by the Company or an Affiliate thereof, sufficient to pay the installment. The Company shall, to the fullest extent permitted by law, pay interest on overdue principal (including premium, if any) and overdue installments of interest at the rate borne by the Securities per annum.      The Company will not be required to make any payment in respect of the Securities on any day that is not a Business Day and any such payment will be due on the next succeeding Business Day and be treated as though it were paid on the original due date and additional interest will not accrue for the additional period of time.      Payment of the principal of (and premium, if any) and any interest on the Securities shall be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York (which shall initially be Wells Fargo Corporate Trust, c/o the Depository Trust Company, 1st Floor - TADS Dept., 55 Water Street, New York, New York 10041, or at the Corporate Trust Office of the Trustee in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address appears in the Register; provided further that a Holder with an aggregate principal amount in excess of $2,000,000 will 45   be paid by wire transfer in immediately available funds at the election of such Holder if such Holder has provided wire transfer instructions to the Company at least 10 Business Days prior to the payment date.      SECTION 6.2. SEC REPORTS.      The Company shall file all reports and other information and documents that it is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, and within 15 days after it files them with the SEC, the Company shall file copies of all such reports, information and other documents with the Trustee.      Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).      SECTION 6.3. COMPLIANCE CERTIFICATES.      The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company (beginning with the fiscal year ending September 30, 2005), an Officers’ Certificate as to the signer’s knowledge of the Company’s compliance with all conditions and covenants on its part contained in this Indenture and stating whether or not the signer knows of any default or Event of Default. If such signer knows of such a default or Event of Default, the Officers’ Certificate shall describe the default or Event of Default and the efforts to remedy the same. For the purposes of this Section 6.3, compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this Indenture.      SECTION 6.4. FURTHER INSTRUMENTS AND ACTS.      Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.      SECTION 6.5. MAINTENANCE OF CORPORATE EXISTENCE.      Subject to Article 7, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.      SECTION 6.6. RULE 144A INFORMATION REQUIREMENT.      Within the period prior to the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision), the Company covenants and agrees that it shall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to any Holder or beneficial holder of Securities or any Common Stock issued upon conversion thereof which continue to be Restricted Securities in connection with any sale thereof and any prospective purchaser of Securities or such Common Stock designated by such Holder or beneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any Holder or beneficial holder of the Securities or such Common Stock and it will take such further action as any Holder or beneficial holder of such Securities or such Common Stock may reasonably request, all to the extent required from time to time to enable such Holder or beneficial holder to sell its Securities or Common Stock without registration under the Securities Act within the limitation of the exemption provided by Rule 144A, as such 46   Rule may be amended from time to time. Upon the request of any Holder or any beneficial holder of the Securities or such Common Stock, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements.      SECTION 6.7. STAY, EXTENSION AND USURY LAWS.      The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of, premium, if any, or interest on the Securities as contemplated affect the covenants or the performance of this Indenture and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.      SECTION 6.8. PAYMENT OF CONTINGENT INTEREST      (a) The Company shall pay Contingent Interest on the Securities as provided in the Global Security. If Contingent Interest is payable by the Company for any semi-annual period, the Company shall deliver to the Trustee notice that the Company is required to pay Contingent Interest for such semi-annual period, on or prior to the record date related to the interest payment date relating to such payment of Contingent Interest. The notice shall set forth the amount of Contingent Interest per $1,000 principal amount of Securities. Promptly after providing such notice to the Trustee, the Company will also disseminate a press release with respect to such payment of Contingent Interest through a public medium that is customary for such press releases.      (b) For the purposes of this Indenture, the Securities shall be treated as indebtedness subject to U.S. Treasury regulations governing contingent payment debt instruments. Each Holder, by its acceptance of a Security agrees to be bound by the Company’s application of the U.S. Treasury regulations that govern contingent payment debt instruments including the Company’s determination that the rate at which interest will be deemed to accrue for U.S. federal income tax purposes will be 5.65% per year, compounded semi-annually. ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE      SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC, ONLY ON CERTAIN TERMS.      The Company shall not consolidate with or merge into any other Person (in a transaction in which the Company is not the surviving Person) or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:           (1) in case the Company shall consolidate with or merge into another Person (in a transaction in which the Company is not the surviving Person) or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, limited liability company, 47   partnership or trust, shall be organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if as of a result of such consolidation, merger, conveyance, transfer or lease, the Securities would become convertible into equity interests of a Person other than the Company pursuant to Section 4.11, then such Person shall not be a pass-through entity for U.S. federal income tax purposes) and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed and the conversion rights shall be provided for in accordance with Article 4, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person (if other than the Company) formed by such consolidation or into which the Company shall have been merged or by the Person which shall have acquired the Company’s assets;           (2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and           (3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.      SECTION 7.2. SUCCESSOR SUBSTITUTED.      Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company substantially as an entirety in accordance with Section 7.1, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities. ARTICLE 8 DEFAULT AND REMEDIES      SECTION 8.1. EVENTS OF DEFAULT.      An “Event of Default” shall occur if:           (1) the Company defaults in the payment of any interest on any Security when the same becomes due and payable and the default continues for a period of 30 days;           (2) the Company defaults in the payment of any principal of (including, without limitation, any premium, if any, on) any Security when the same becomes due and payable (whether at maturity, upon redemption, purchase or repurchase, on a Redemption Date, Repurchase Date, Change of Control Purchase Date or otherwise); 48             (3) the Company fails to comply with any of its other agreements contained in the Securities or this Indenture and the default continues for the period and after the notice specified below;           (4) the Company defaults in the payment of the purchase price of any Security when the same becomes due and payable; or           (5) the Company fails to provide a Change in Control Purchase Notice when required by Section 3.8; or           (6) any indebtedness under any bond, debenture, note or other evidence of indebtedness for money borrowed by the Company or any Significant Subsidiary or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or any Significant Subsidiary (an “Instrument”) with a principal amount then outstanding in excess of U.S. $25,000,000 whether such indebtedness now exists or shall hereafter be created, is not paid at final maturity of the Instrument (either at its stated maturity or upon acceleration thereof), and such indebtedness is not discharged, or such acceleration is not cured, waived, rescinded or annulled, within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such default to be cured or waived or such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or           (7) the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:   (A)   commences a voluntary case or proceeding;     (B)   consents to the entry of an order for relief against it in an involuntary case or proceeding;     (C)   consents to the appointment of a Custodian of it or for all or substantially all of its property; or     (D)   makes a general assignment for the benefit of its creditors; or           (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:   (A)   is for relief against the Company or any Significant Subsidiary in an involuntary case or proceeding;     (B)   appoints a Custodian of the Company or any Significant Subsidiary or for all or substantially all of the property of the Company or any Significant Subsidiary; or     (C)   orders the liquidation of the Company or any Significant Subsidiary; and in each case the order or decree remains unstayed and in effect for 60 days. 49        The term “Bankruptcy Law” means Title 11 of the United States Code (or any successor thereto) or any similar federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.      A default under clause (3) above is not an Event of Default until the Trustee notifies the Company in writing, or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding notify the Company and the Trustee in writing, of the default, and the Company does not cure the default within 60 days after receipt of such notice. The notice given pursuant to this Section 8.1 must specify the default, demand that it be remedied and state that the notice is a “Notice of Default.” When any default under this Section 8.1 is cured, it ceases to exist.      The Trustee shall not be charged with knowledge of any Event of Default unless written notice thereof shall have been given to a Trust Officer at the Corporate Trust Office of the Trustee by the Company, a Paying Agent, any Holder or any agent of any Holder.      SECTION 8.2. ACCELERATION.      If an Event of Default (other than an Event of Default specified in clause (7) or (8) of Section 8.1 with respect to the Company) occurs and is continuing, the Trustee may, by notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding may, by notice to the Company and the Trustee, declare all unpaid principal to the date of acceleration on the Securities then outstanding (if not then due and payable) to be due and payable upon any such declaration, and the same shall become and be immediately due and payable. If an Event of Default specified in clause (7) or (8) of Section 8.1 occurs with respect to the Company, all unpaid principal of the Securities then outstanding shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may rescind an acceleration and its consequences if (a) all existing Events of Default, other than the nonpayment of the principal of the Securities which has become due solely by such declaration of acceleration, have been cured or waived; (b) to the extent the payment of such interest is lawful, interest (calculated at the rate per annum borne by the Securities) on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; (c) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (d) all payments due to the Trustee and any predecessor Trustee under Section 9.7 have been made. consequent thereto.      SECTION 8.3. OTHER REMEDIES.      If an Event of Default occurs and is continuing, the Trustee may, but shall not be obligated to, pursue any available remedy by proceeding at law or in equity to collect the payment of the principal of or interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.      The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law. 50        SECTION 8.4. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.      Subject to Sections 8.7 and 11.2, the Holders of a majority in principal amount of the Securities then outstanding, by notice to the Trustee may waive an existing default or Event of Default and its consequences, except a default or Event of Default in the payment of the principal of, or premium or interest on any Security, a failure by the Company to convert any Securities in accordance with this Indenture or any failure to comply with any provision of this Indenture or the Securities which, under Section 11.2, cannot be modified or amended without the consent of the Holder of each Security affected. When a default or Event of Default is waived, it is cured and ceases to exist.      SECTION 8.5. CONTROL BY MAJORITY.      The Holders of a majority in principal amount of the Securities then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder or the Trustee, or that may involve the Trustee in personal liability unless the Trustee is offered indemnity reasonably satisfactory to it; provided, however, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.      SECTION 8.6. LIMITATIONS ON SUITS.      A Holder may not pursue any remedy with respect to this Indenture or the Securities or for the appointment of a receiver or a trustee (except actions for payment of overdue principal or interest or for the failure of the Company to satisfy its Conversion Obligation upon conversion of the Securities pursuant to Article 4) unless:           (1) the Holder gives to the Trustee written notice of a continuing Event of Default;           (2) the Holders of at least 25% in aggregate principal amount of the then outstanding Securities make a written request to the Trustee to pursue the remedy;           (3) such Holder or Holders offer to the Trustee reasonable indemnity to the Trustee against any loss, liability or expense;           (4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and           (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Securities then outstanding.      A Securityholder may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over such other Securityholder.      SECTION 8.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT.      Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive payment of the principal of and interest on the Security, on or after the respective due dates expressed in the Security and this Indenture, to convert such Security in accordance with Article 4 and to bring suit for the 51   enforcement of any such payment on or after such respective ates or the right to convert, is absolute and unconditional and shall not be impaired or affected without the consent of the Holder.      SECTION 8.8. COLLECTION SUIT BY TRUSTEE.      If an Event of Default in the payment of principal or interest specified in clause (1) or (2) of Section 8.1 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or another obligor on the Securities for the whole amount of principal and accrued interest remaining unpaid, together with, to the extent that payment of such interest is lawful, interest on overdue principal and on overdue installments of interest, in each case at the rate per annum borne by the Securities and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.      SECTION 8.9. TRUSTEE MAY FILE PROOFS OF CLAIM.      The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor on the Securities), its creditors or its property and shall be entitled and empowered to collect and receive any money or other property payable or deliverable on any such claims and to distribute the same, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 9.7, and to the extent that such payment of the reasonable compensation, expenses, disbursements and advances in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other property which the Holders may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to, or, on behalf of any Holder, to authorize, accept or adopt any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.      SECTION 8.10. PRIORITIES.      If the Trustee collects any money or other property pursuant to this Article 8, it shall pay out the money or other property in the following order:      First, to the Trustee for amounts due under Section 9.7;      Second, to Holders for amounts due and unpaid on the Securities for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal and interest, respectively; and      Third, to the Company. 52        The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 8.10.      SECTION 8.11. UNDERTAKING FOR COSTS.      In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 8.11 does not apply to a suit made by the Trustee, a suit by a Holder pursuant to Section 8.7, or a suit by Holders of more than 10% in principal amount of the Securities then outstanding. ARTICLE 9 TRUSTEE      SECTION 9.1. DUTIES OF TRUSTEE.      (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.      (b) Except during the continuance of an Event of Default:           (1) the Trustee need perform only those duties as are specifically set forth in this Indenture and no others; and           (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. The Trustee, however, shall examine any certificates and opinions, which, by any provision hereof are specifically required to be delivered to the Trustee to determine whether or not on their face they conform to the requirements of this Indenture.      (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:           (1) this paragraph does not limit the effect of subsection (b) of this Section 9.1;           (2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and           (3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 8.5.      (d) No provision of this Indenture shall require the Trustee to expend or of any of its duties hereunder or in the exercise of any of its rights or powers unless the Trustee shall have received adequate indemnity in its opinion against potential costs and liabilities incurred by it relating thereto. 53        (e) Every provision of this Indenture that in any way relates to the Trustee is subject to subsections (a), (b), (c) and (d) of this Section 9.1.      (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.      SECTION 9.2. RIGHTS OF TRUSTEE.      Subject to Section 9.1:      (a) The Trustee may rely conclusively on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.      (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both, which shall conform to Section 12.4(b). The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion.      (c) The Trustee may act through its agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.      (d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers.      (e) The Trustee may consult with counsel of its selection, and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection in respect of any such action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.      (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.      (g) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.      (h) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event, which is in fact such a default, is received by the Trustee at the Corporate Trust Office, and such notice references the Securities and this Indenture. 54        (i) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.      SECTION 9.3. INDIVIDUAL RIGHTS OF TRUSTEE.      The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Sections 9.10 and 9.11.      SECTION 9.4. TRUSTEE’S DISCLAIMER.      The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its certificate of authentication.      SECTION 9.5. NOTICE OF DEFAULT OR EVENTS OF DEFAULT.      If a default or an Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to each Securityholder notice of the default or Event of Default within 90 days after it becomes known to the Trustee. However, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding notice is in the interests of Securityholders, except in the case of a default or an Event of Default in payment of the principal of or interest on any Security.      SECTION 9.6. REPORTS BY TRUSTEE TO HOLDERS.      If such report is required by TIA Section 313, within 60 days after each March 15, beginning with the March 15 following the date of this Indenture, the Trustee shall mail to each Securityholder a brief report dated as of such May 15 that complies with TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2) and (c).      A copy of each report at the time of its mailing to Securityholders shall be mailed to the Company and filed with the SEC and each stock exchange, if any, on which the Securities are listed. The Company shall notify the Trustee whenever the Securities become listed on any stock exchange or listed or admitted to trading on any quotation system and any changes in the stock exchanges or quotation systems on which the Securities are listed or admitted to trading and of any delisting thereof.      SECTION 9.7. COMPENSATION AND INDEMNITY.      The Company shall pay to the Trustee from time to time such compensation (as agreed to from time to time by the Company and the Trustee in writing) for its services (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust). The Company shall reimburse the Trustee upon request for all reasonable disbursements, expenses and advances incurred or made by it. Such expenses may include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel. 55        The Company shall indemnify the Trustee or any predecessor Trustee (which for purposes of this Section 9.7 shall include its officers, directors, employees and agents) for, and hold it harmless against, any and all loss, liability or expense including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), (including reasonable legal fees and expenses) incurred by it in connection with the acceptance or administration of its duties under this Indenture or any action or failure to act as authorized or within the discretion or rights or powers conferred upon the Trustee hereunder including the reasonable costs and expenses of the Trustee and its counsel in defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the Company promptly of any claim asserted against the Trustee for which it may seek indemnity. The Company need not pay for any settlement without its written consent, which shall not be unreasonably withheld.      The Company need not reimburse the Trustee for any expense or indemnify it against any loss or liability incurred by it resulting from its gross negligence, willful misconduct or bad faith.      To secure the Company’s payment obligations in this Section 9.7, the Trustee shall have a senior claim to which the Securities are hereby made subordinate on all money or property held or collected by the Trustee, except such money or property held in trust to pay the principal of and interest on the Securities. The obligations of the Company under this Section 9.7 shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee.      When the Trustee incurs expenses or renders services after an Event of Default specified in clause (7) or (8) of Section 8.1 occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. The provisions of this Section shall survive the termination of this Indenture.      SECTION 9.8. REPLACEMENT OF TRUSTEE.      The Trustee may resign by so notifying the Company. The Holders of a majority in principal amount of the Securities then outstanding may remove the Trustee by so notifying the Trustee and may, with the Company’s written consent, appoint a successor Trustee. The Company may remove the Trustee if:           (1) the Trustee fails to comply with Section 9.10;           (2) the Trustee is adjudged a bankrupt or an insolvent;           (3) a receiver or other public officer takes charge of the Trustee or its property; or           (4) the Trustee becomes incapable of acting.      If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. The resignation or removal of a Trustee shall not be effective until a successor Trustee shall have delivered the written acceptance of its appointment as described below.      If a successor Trustee does not take office within 45 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of 10% in principal amount of the Securities then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee at the expense of the Company. 56        If the Trustee fails to comply with Section 9.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.      A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee and be released from its obligations (exclusive of any liabilities that the retiring Trustee may have incurred while acting as Trustee) hereunder, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail notice of its succession to each Holder.      A retiring Trustee shall not be liable for the acts or omissions of any successor Trustee after its succession.      Notwithstanding replacement of the Trustee pursuant to this Section 9.8, the Company’s obligations under Section 9.7 shall continue for the benefit of the retiring Trustee.      SECTION 9.9. SUCCESSOR TRUSTEE BY MERGER, ETC.      If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust assets (including the administration of this Indenture) to, another corporation, the resulting, surviving or transferee corporation, without any further act, shall be the successor Trustee, provided such transferee corporation shall qualify and be eligible under Section 9.10. Such successor Trustee shall promptly mail notice of its succession to the Company and each Holder.      SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.      The Trustee shall always satisfy the requirements of paragraphs (1), (2) and (5) of TIA Section 310(a). The Trustee (or its parent holding company) shall have a combined capital and surplus of at least $50,000,000. If at any time the Trustee shall cease to satisfy any such requirements, it shall resign immediately in the manner and with the effect specified in this Article 9. The Trustee shall be subject to the provisions of TIA Section 310(b). Nothing herein shall prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA Section 310(b).      SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.      The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE      SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.      This Indenture shall cease to be of further effect (except as to any surviving rights of conversion, registration of transfer or exchange of Securities herein expressly provided for and except as further provided below), and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when 57             (1) either                (A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.7 and (ii) Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company as provided in Section 10.3) have been delivered to the Trustee for cancellation; or                (B) all such Securities not theretofore delivered to the Trustee for cancellation                     (i) have become due and payable, or                     (ii) will become due and payable at the Final Maturity Date within one year, or                     (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of clause (i), (ii) or (iii) above, has irrevocably deposited or caused to be irrevocably deposited with the Trustee or a Paying Agent (other than the Company or any of its Affiliates) as trust funds in trust for the purpose cash in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Final Maturity Date or Redemption Date, as the case may be;           (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.      Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 9.7 shall survive and, the provisions of Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 3.8, 3.9, 3.10, 3.12, 3.13, 3.14, the last paragraph of 6.1 and 12.5, Article 4, and this Article 10, shall survive until the Securities have been paid in full.      SECTION 10.2. APPLICATION OF TRUST MONEY.      Subject to the provisions of Section 10.3, the Trustee or a Paying Agent shall hold in trust, for the benefit of the Holders, all money deposited with it pursuant to Section 10.1 and shall apply the deposited money in accordance with this Indenture and the Securities to the payment of the principal of and interest on the Securities.      SECTION 10.3. REPAYMENT TO COMPANY.      The Trustee and each Paying Agent shall promptly pay to the Company upon request any excess money (i) deposited with them pursuant to Section 10.1 and (ii) held by them at any time. 58        The Trustee and each Paying Agent shall pay to the Company upon request any money held by them for the payment of principal or interest that remains unclaimed for two years after a right to such money has matured; provided, however, that the Trustee or such Paying Agent, before being required to make any such payment, may at the expense of the Company cause to be mailed to each Holder entitled to such money notice that such money remains unclaimed and that after a date specified therein, which shall be at least 30 days from the date of such mailing, any unclaimed balance of such money then remaining will be repaid to the Company. After payment to the Company, Holders entitled to money must look to the Company for payment as general creditors.      SECTION 10.4. REINSTATEMENT.      (a) If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 10.2 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 10.1 until such time as the Trustee or such Paying Agent is permitted to apply all such money in accordance with Section 10.2; provided, however, that if the Company has made any payment of the principal of or interest on any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive any such payment from the money held by the Trustee or such Paying Agent.      (b) In the event that the Company exercises its right to redeem the Securities as provided in Article 3, the Company shall have the right to withdraw its funds previously deposited with the Trustee or Paying Agent pursuant to Section 10.1(1)(B)(iii). In such case, the Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit has occurred pursuant to Section 10.1(1)(B)(iii). ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS      SECTION 11.1. WITHOUT CONSENT OF HOLDERS.      The Company and the Trustee may amend or supplement this Indenture or the Securities without notice to or consent of any Securityholder:      (a) to comply with Sections 4.11, 4.14(c) and 7.1;      (b) to cure any ambiguity, defect or inconsistency;      (c) to make any other change that does not adversely effect the rights of any Securityholder;      (d) to comply with the provisions of the TIA; or      (e) to appoint a successor Trustee. 59        SECTION 11.2. WITH CONSENT OF HOLDERS. Securities with the written consent of the Holders of at least a majority in aggregate principal amount of the Securities then outstanding. The Holders of at least a majority in aggregate principal amount of the Securities then outstanding may waive compliance in a particular instance by the Company with any provision of this Indenture or the Securities without notice to any Securityholder. However, notwithstanding the foregoing but subject to Section 11.4, without the written consent of each Securityholder affected, an amendment, supplement or waiver, including a waiver pursuant to Section 8.4, may not:      (a) change the stated maturity of the principal of, or interest on, any Security;      (b) reduce the principal amount of, or Repurchase Price or Change in Control Purchase Price or any premium or interest on, any Security;      (c) reduce the Make-Whole Premium on any Security;      (d) reduce the amount of principal payable upon acceleration of the maturity of any Security;      (e) change the place or currency of payment of principal of, or any premium or interest on, any Security;      (f) impair the right to institute suit for the enforcement of any payment on, or with respect to, any Security;      (g) modify the provisions with respect to the purchase right of Holders pursuant to Article 3 or upon a Change in Control in a manner adverse to Holders;      (h) adversely affect the right of Holders to convert Securities other than as provided in or under Article 4 of this Indenture;      (i) reduce the Principal Return or Net Share Amount received upon conversion;      (j) reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a modification or amendment;      (k) reduce the percentage of the aggregate principal amount of the outstanding Securities necessary for the waiver of compliance with certain provisions of this Indenture or the waiver of certain defaults under this Indenture; and      (l) modify any of the provisions of this Section or Section 8.4, except to increase any such percentage or to provide that certain provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Security affected thereby.      It shall not be necessary for the consent of the Holders under this Section 11.2 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. 60        After an amendment, supplement or waiver under this Section 11.2 becomes effective, the Company shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.      SECTION 11.3. COMPLIANCE WITH TRUST INDENTURE ACT.      Every amendment to or supplement of this Indenture or the Securities shall comply with the TIA as in effect at the date of such amendment or supplement.      SECTION 11.4. REVOCATION AND EFFECT OF CONSENTS.      Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective.      After an amendment, supplement or waiver becomes effective, it shall bind every Securityholder, unless it makes a change described in any of clauses (a) through (l) of Section 11.2. In that case the amendment, supplement or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.      SECTION 11.5. NOTATION ON OR EXCHANGE OF SECURITIES.      If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms.      SECTION 11.6. TRUSTEE TO SIGN AMENDMENTS, ETC.      The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article 11 if the amendment or supplemental indenture does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, in its sole discretion, but need not sign it. In signing or refusing to sign such amendment or supplemental indenture, the Trustee shall be entitled to receive and, subject to Section 9.1, shall be fully protected in relying upon, an Opinion of Counsel stating that such amendment or supplemental indenture is authorized or permitted by this Indenture. The Company may not sign an amendment or supplement indenture until the Board of Directors approves it.      SECTION 11.7. EFFECT OF SUPPLEMENTAL INDENTURES.      Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. 61   ARTICLE 12 MISCELLANEOUS      SECTION 12.1. TRUST INDENTURE ACT CONTROLS.      If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the TIA through operation of Section 318(c) thereof, such imposed duties shall control.      SECTION 12.2. NOTICES.      Any notice, request or communication shall be given in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows: If to the Company: Fair Isaac Corporation 901 Marquette Avenue, Suite 3200 Minneapolis, Minnesota 55402 Attn: General Counsel If to the Trustee: Wells Fargo Bank, National Association MAC N9303-110 Sixth and Marquette Avenue Minneapolis, MN 55479 Attention: Corporate Trust Services (Fair Isaac Corporation — 1.5% Senior Convertible Notes, Series B Due August 15, 2023)      Such notices or communications shall be effective when received.      The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.      Any notice or communication mailed to a Securityholder shall be mailed by first-class mail or delivered by an overnight delivery service to it at its address shown on the register kept by the Primary Registrar. Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication to a Securityholder is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.      SECTION 12.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.      Securityholders may communicate pursuant to TIA Section 312(b) with other Securityholders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and any other person shall have the protection of TIA Section 312(c).      SECTION 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.      (a) Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee at the request of the Trustee: 62             (1) an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent (including any covenants, compliance with which constitutes a condition precedent), if any, provided for in this Indenture relating to the proposed action have been complied with; and           (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent (including any covenants, compliance with which constitutes a condition precedent) have been complied with.      (b) Each Officers’ Certificate and Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture shall include:           (1) a statement that the person making such certificate or opinion has read such covenant or condition;           (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;           (3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and           (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with; provided however, that with respect to matters of fact an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.      SECTION 12.5. RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS.      The Company (or, in the event deposits have been made pursuant to Section 10.1, the Trustee) may set a record date for purposes of determining the identity of Holders entitled to vote, waive or consent to any action by vote, waiver or consent authorized or permitted under this Indenture, which record date shall not be more than thirty (30) days prior to the date of the commencement of solicitation of such action. Notwithstanding the provisions of Section 11.4, if a record date is fixed, those persons who were Holders of Securities at the close of business on such record date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record date. AGENT.      The Trustee may make reasonable rules (not inconsistent with the terms of this Indenture) for action by or at a meeting of Holders. Any Registrar, Paying Agent or Conversion Agent may make reasonable rules for its functions. 63        SECTION 12.7. LEGAL HOLIDAYS.      A “Legal Holiday” is a Saturday, Sunday or a day on which state or federally chartered banking institutions in New York, New York and the state in which the Corporate Trust Office is located are not required to be open. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.      SECTION 12.8. GOVERNING LAW.      This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.      SECTION 12.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.      This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.      SECTION 12.10. NO RECOURSE AGAINST OTHERS.      All liability described in paragraph 18 of the Securities of any director, officer, employee or shareholder, as such, of the Company is waived and released.      SECTION 12.11. SUCCESSORS.      All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.      SECTION 12.12. MULTIPLE COUNTERPARTS.      The parties may sign multiple counterparts of this Indenture. Each signed counterpart shall be deemed an original, but all of them together represent the same agreement.      SECTION 12.13. SEPARABILITY.      In case any provisions in this Indenture or in the Securities 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.      SECTION 12.14. TABLE OF CONTENTS, HEADINGS, ETC.      The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. 64        IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the date and year first above written.               Fair Isaac Corporation             By:   /s/ Charles M. Osborne           Name:   Charles M. Osborne   Title:   Vice President and Chief Financial Officer               Wells Fargo Bank, National Association, as Trustee             By:   /s/ Timothy P. Mowdy           Name:   Timothy P. Mowdy     EXHIBIT A [FORM OF FACE OF SECURITY]      [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO FAIR ISAAC CORPORATION (THE “COMPANY”) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR ANOTHER NOMINEE OF THE SUCCESSOR DEPOSITARY.]1      [THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS SECURITY AND THE SHARES ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.]2      [THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE SHARES ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED 1   These paragraphs to be included only if the Security is a Global Security.   2   These paragraphs to be included only if the Security is a Restricted Security. A-1   INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.]2      THE COMPANY AGREES, AND BY ACCEPTING A BENEFICIAL OWNERSHIP INTEREST IN THIS SECURITY EACH HOLDER AND ANY BENEFICIAL OWNER OF THIS SECURITY WILL BE DEEMED TO HAVE AGREED, FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, TO TREAT THE ISSUANCE OF THIS NOTE IN EXCHANGE FOR THE 1.5% SENIOR CONVERTIBLE NOTES DUE AUGUST 15, 2023 ISSUED BY THE COMPANY ON AUGUST 6, 2003 (“OUTSTANDING NOTES”) AS NOT CONSTITUTING A “SIGNIFICANT MODIFICATION” OF THE OUTSTANDING NOTES WITHIN THE MEANING OF UNITED STATES TREASURY REGULATIONS SECTION 1.1001-3(e) A-2   FAIR ISAAC CORPORATION       CUSIP:   No.:      Fair Isaac Corporation, a Delaware corporation (the “Company”, which term shall include any successor corporation under the Indenture referred to on the reverse hereof), promises to pay to ___, or registered assigns, the principal sum of ___ ($___) on August 15, 2023 [or such greater or lesser amount as is indicated on the Schedule of Exchanges of Securities on the other side of this Security].1       Interest Payment Dates:   August 15 and February 15       Record Dates:   August 1 and February 1      This Security is convertible as specified on the other side of this Security. Additional provisions of this Security are set forth on the other side of this Security. SIGNATURE PAGE FOLLOWS A-3        IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.               FAIR ISAAC CORPORATION             By:               Name:       Title:     Attest:           By:               Name:         Title:         Dated: Trustee’s Certificate of Authentication: This is one of the Securities referred to in the within-mentioned Indenture. as Trustee           By: Authorized Signatory     A-4   [FORM OF REVERSE SIDE OF SECURITY] FAIR ISAAC CORPORATION 1. Interest      (a) Regular Interest. Fair Isaac Corporation, a Delaware corporation (the “Company”, which term shall include any successor corporation under the Indenture hereinafter referred to), promises to pay interest on the principal amount of this Security at the rate of 1.5% per annum (“Regular Interest”), from the most recent date on or prior to the date of the Indenture to which interest (at the rate of 1.5% per annum) has been paid or provided for on the Existing Securities through August 15, 2008. After August 15, 2008 the Company will not pay Regular Interest on this Security semi-annually as provided in clause (c), below, prior to maturity, but Regular Interest will continue to accrue and will be compounded semi-annually and be payable upon redemption, purchase, repurchase or on the Final Maturity Date.      (b) Contingent Interest. The Company shall pay Contingent Interest on the Securities in the same manner as Regular Interest.      (c) Procedure. The Company shall pay interest semi-annually on August 15 and February 15 of each year, with the first Regular Interest payment date to be August 15, 2005 and the first Contingent Interest payment date, if any, to be February 15, 2009. Interest on the Securities shall accrue from the most recent date to which interest has been paid or, in the case of Regular Interest, if no interest has been paid, from the most recent date on or prior to the date of the Indenture to which interest (at the rate of 1.5% per annum) has been paid or provided for on the Existing Securities and in the case of Contingent Interest, if any, from August 15, 2008. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Any reference herein to interest accrued or payable as of any date shall include any Regular Interest or Contingent Interest accrued or payable on such date as provided herein. 2. Method of Payment      The Company shall pay interest on this Security (except defaulted interest) to the person who is the Holder of this Security at the close of business on February 1 or August 1, as the case may be, next preceding the related interest payment date. The Holder must surrender this Security to a Paying Agent to collect payment of principal. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. The Company may, however, pay principal and interest in respect of any Certificated Security by check or wire payable in such money; provided, however, that a Holder with an aggregate principal amount in excess of $2,000,000 will be paid by wire transfer in immediately available funds at the election of such Holder, if such Holder has provided wire transfer instructions to the Company at least 10 Business Days prior to the interest payment date. The Company may mail an interest check to the Holder’s registered address. Notwithstanding the foregoing, so long as this Security is registered in the name of a Depositary or its nominee, all payments hereon shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Company will not be required to make any payment in respect of the Securities on any day that is not a Business Day and any such payment will be due on the next succeeding Business Day and be treated as though it were paid on the original due date and additional interest will not accrue for the additional period of time. A-5   3. Paying Agent, Registrar and Conversion Agent      Initially, Wells Fargo Bank, National Association (the “Trustee”, which term shall include any successor trustee under the Indenture hereinafter referred to) will act as Paying Agent, Registrar and Conversion Agent. The Company may change any Paying Agent, Registrar or Conversion Agent without notice to the Holder. The Company or any of its Subsidiaries may, subject to certain limitations set forth in the Indenture, act as Paying Agent or Registrar. 4. Indenture, Limitations      This Security is one of a duly authorized issue of Securities of the Company designated as its 1.5% Senior Convertible Notes, Series B Due August 15, 2023 (the “Securities”), issued under an Indenture dated as of March ___, 2005 (together with any supplemental indentures thereto, the “Indenture”), between the Company and the Trustee. The terms of this Security include those stated in the Indenture and those required by or made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended, as in effect on the date of the Indenture. This Security is subject to all such terms, and the Holder of this Security is referred to the Indenture and said Act for a statement of them.      The Securities are senior unsecured obligations of the Company limited to $400,000,000 aggregate principal amount, subject to Section 2.2 of the Indenture. The Indenture does not limit other debt of the Company, secured or unsecured. 5. Optional Redemption      (a) The Securities are subject to redemption, as a whole or in part, at any time on or after August 15, 2008, at 100% of the principal amount of the Securities being redeemed, together with accrued and unpaid interest up to, but not including, the Redemption Date; provided that if the Redemption Date occurs after a record date for payment of interest and prior to the interest payment date related to such record date, interest will be payable to the Holders in whose name the Securities are registered on the Redemption Date.      (b) Notice of redemption will be mailed by first-class mail at least 20 but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at its registered address. Securities in denominations larger than $1,000 may be redeemed in part, but only in whole multiples of $1,000. On and after the Redemption Date, subject to the deposit with the Paying Agent of funds sufficient to pay the Redemption Price plus accrued interest, if any, accrued to, but excluding, the Redemption Date, interest shall cease to accrue on Securities or portions of them called for redemption.      (c) No sinking fund is provided for the Securities. 6. Conversion Arrangement on Call for Redemption      Any Securities called for redemption, unless surrendered for conversion before the close of business on the Business Day immediately preceding the Redemption Date, may be deemed to be purchased from the Holders of such Securities at an amount not less than the Redemption Price, together with accrued interest, if any, to, but not including, the Redemption Date, by one or more investment banks or other purchasers who may agree with the Company to purchase such Securities from the Holders, to convert them into the Conversion Obligation and to make payment for such Securities to the Paying Agent in trust for such Holders. A-6   7. Repurchase at the Option of the Holders Securities for cash, on August 15, 2007, August 15, 2008, August 15, 2013 or August 15, 2018 (each a “Repurchase Date”) at a purchase price per Security equal to 100% of the aggregate principal amount of the Security, together with any accrued and unpaid interest to, but not including, the applicable Repurchase Date; provided that if such Repurchase Date is an interest payment date, interest on the Securities will be payable to the Holders in whose names the Securities are registered on such Repurchase Date. by delivery of the Repurchase Notice as provided in the Indenture, to each Holder (at its address shown in the register of the Registrar) and to beneficial owners as required by applicable law, not less than 20 Business Days prior to each Repurchase Date. 8. Purchase of Securities at Option of Holder Upon a Change in Control      At the option of the Holder and subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase all or any part specified by the Holder (so long as the principal amount of such part is $1,000 or an integral multiple of $1,000 in excess thereof) of the Securities held by such Holder on the date that is 30 Business Days after the occurrence of a Change in Control, at a purchase price equal to 100% of the principal amount thereof together with accrued and unpaid interest up to, but excluding, the Change in Control Purchase Date. The Holder shall have the right to withdraw any Change in Control Purchase Notice (in whole or in a portion thereof that is $1,000 or an integral multiple of $1,000 in excess thereof) at any time prior to the close of business on the Business Day immediately preceding the Change in Control Purchase Date by delivering a written notice of withdrawal to the Paying Agent in accordance with the terms of the Indenture. 9. Conversion      (a) Subject to the provisions of Article 4 of the Indenture, a Holder of a upon the occurrence of the conditions set forth in Article 4 of the Indenture; provided, however, that if the Security is called for redemption, the conversion right will terminate at the close of business on the Business Day immediately preceding the Redemption Date for such Security or such earlier date as the Holder presents such Security for redemption (unless the Company shall default in making the redemption payment when due, in which case the conversion right shall terminate at the close of business on the date such default is cured and such Security is redeemed). Subject to the provisions of Article 4 of the Indenture, a Holder of a Security may convert such Securities into: (A) the principal amount of each Security and (B) the Conversion Value; and the sum of the Daily Share Amounts for each Trading Day during the Applicable combination of cash and shares of Common Stock with a value equal to the Net Share Amount. The Daily Share Amount shall be calculated using the Closing Sale Price of the Common Stock on each Trading Day. References herein to A-7   “Net Share Amount” shall be deemed to be references to such amount in cash or combination of cash and Common Stock, as applicable. Reference Period. The Company shall pay the Principal Return and cash for fractional shares and deliver Net Shares, if any, no later than the third Business Day following the determination of the Applicable Stock Price.      (b) The initial Conversion Price is $43.9525 per share, subject to adjustment under certain circumstances. No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid in cash based upon the Closing Sale Price (as defined in the Indenture) of the Common Stock on the Trading Day immediately prior to the Conversion Date.      (c) To convert a Security, a Holder must (a) complete and manually sign the conversion notice set forth below and deliver such notice to a Conversion Agent, (b) surrender the Security to a Conversion Agent, (c) furnish appropriate endorsements and transfer documents if required by a Registrar or a Conversion Agent, and (d) pay any transfer or similar tax, if required. Securities so surrendered for conversion (in whole or in part) during the period from the close of business on any regular record date to the opening of business on the next succeeding interest payment date (excluding Securities or portions thereof called for redemption on a Redemption Date, presented for purchase upon a Change in Control on a Change in Control Purchase Date or presented for repurchase on a Repurchase Date, as the case may be, during the period beginning at the close of business on a regular record date and ending at the opening of business on the first Business Day after the next succeeding interest payment date, or if such interest payment date is not a Business Day, the second such Business Day) shall also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such interest payment date on the principal amount of such Security then being converted, and such interest shall be payable to such registered Holder notwithstanding the conversion of such Security, subject to the provisions of the Indenture relating to the payment of defaulted interest by the Company. If the Company defaults in the payment of interest payable on such interest payment date, the Company shall promptly repay such funds to such Holder. A Holder may convert a portion of a Security equal to $1,000 or any integral multiple thereof.      (d) A Security in respect of which a Holder had delivered a Change in Control Purchase Notice or Repurchase Election Notice, exercising the option of such Holder to require the Company to purchase or repurchase such Security may be converted only if the Change in Control Purchase Notice or Repurchase Election Notice is withdrawn in accordance with the terms of the Indenture and in the case of the Repurchase Election Notice, the Securities are otherwise convertible in accordance herewith and the terms of the Indenture. 10. Make-Whole Premium      If a Change in Control occurs prior to August 15, 2008, the Company shall appraisal rights) in such Change in Control consists of shares of Capital Stock traded on the New York Stock Exchange A-8   or another U.S. national securities exchange or quoted on the Nasdaq Stock Market or a successor automated over-the-counter trading market in the United States (or that will be so traded or quoted immediately following the transaction), or (ii) if the Company has provided a Public Acquirer Change in Control Notice as described in Section 4.14(c) of the Indenture. The Make-Whole Premium shall be paid on the Change in Control Purchase Date and shall be paid solely in shares of the Common Stock (other than cash paid in lieu of fractional shares) or in the same form of consideration into which all or substantially all of the shares of Common Stock have been converted or exchanged in connection with the Change in Control, as described in the Indenture. The Make-Whole Premium shall be equal to an applicable percentage of the principal amount of the Securities specified in the Indenture. The Make-Whole Premium will be in addition to, and not in substitution for, any cash, securities or other assets otherwise due to Holders of Securities upon conversion as described in the Indenture. Section 5.1(a) of the Indenture, to have provided such notice on the tenth Business Day after the occurrence of such Change in Control. 11. Denominations, Transfer, Exchange      The Securities are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. A Holder may register the transfer or exchange of Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes or other governmental charges that may be imposed in relation thereto by law or permitted by the Indenture. 12. Persons Deemed Owners      The Holder of a Security may be treated as the owner of it for all purposes. 13. Unclaimed Money      If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its written request. After that, Holders entitled to money must look to the Company for payment. 14. Amendment, Supplement and Waiver      Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the Securities then outstanding, and an existing default or Event of Default and its consequence or compliance with any provision of the Indenture or the Securities may be waived in a particular instance with the consent of the Holders of a majority in principal amount of the Securities then outstanding. Without the consent of or notice to any Holder, the Company and the Trustee may amend or supplement the Indenture or the Securities to, among other things, cure any ambiguity, defect or inconsistency or make any other change that does not adversely affect the rights of any Holder. A-9   15. Successor Entity      When a successor corporation, limited liability company, partnership or trust assumes all the obligations of its predecessor under the Securities and the Indenture in accordance with the terms and conditions of the Indenture, the predecessor corporation, limited liability company, partnership or trust will (except in certain circumstances specified in the Indenture) be released from those obligations. 16. Defaults and Remedies      The Indenture sets forth the applicable Events of Default with respect to the Securities. If an Event of Default (other than as a result of certain events of bankruptcy, insolvency or reorganization of the Company) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding may declare all unpaid principal to the date of acceleration on the Securities then outstanding to be due and payable immediately, all as and to the extent provided in the Indenture. If an Event of Default occurs as a result of certain events of bankruptcy, insolvency or reorganization of the Company, unpaid principal of the Securities then outstanding shall become due and payable immediately without any declaration or other act on the part of the Trustee or any Holder, all as and to the extent provided in the Indenture. Holders may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a majority in principal amount of the Securities then outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal or interest) if it determines that withholding notice is in their interests. The Company is required to file periodic reports with the Trustee as to the absence of default. 17. Trustee Dealings with the Company      Wells Fargo Bank, National Association, the Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from and perform services for the Company or an Affiliate of the Company, and may otherwise deal with the Company or an Affiliate of the Company, as if it were not the Trustee. 18. No Recourse Against Others      A director, officer, employee or shareholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture nor for any claim based on, in respect of or by reason of such obligations or their creation. The Holder of this Security by accepting this Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of this Security. 19. Authentication      This Security shall not be valid until the Trustee or an authenticating agent manually signs the certificate of authentication on the other side of this Security. 20. Abbreviations and Definitions      Customary abbreviations may be used in the name of the Holder or an assignee, such as: A-10             TEN COM   =   tenants in common, TEN ENT   =   tenants by the entireties, JT TEN   =   joint tenants with right of survivorship and not as tenants in common, CUST   =   Custodian, and UGMA   =   Uniform Gifts to Minors Act.      All terms defined in the Indenture and used in this Security but not specifically defined herein are defined in the Indenture and are used herein as so defined. 21. Contingent Instrument      This Security shall be treated as indebtedness subject to U.S. treasury regulations governing contingent payment debt instruments. 22. Indenture To Control      In the case of any conflict between the provisions of this Security and the Indenture, the provisions of the Indenture shall control. The Company will furnish to any Holder, upon written request and without charge, a copy of the Indenture. Requests may be made to: Fair Isaac Corporation, 901 Marquette Avenue, Suite 3200, Minneapolis, Minnesota 55402, Attention: Chief Financial Officer. Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture unless otherwise indicated. 23. Governing Law      This Security shall be governed by, and construed in accordance with, the laws of the State of New York. A-11   ASSIGNMENT FORM      To assign this Security, fill in the form below:      I or we assign and transfer this Security to (Insert assignee’s soc. sec. or tax I.D. no.) (Print or type assignee’s name, address and zip code) and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him or her.                         Your Signature               Date:                   (Sign exactly as your name appears on the           other side of this Security)               *Signature guaranteed by:                       By:           *   The signature must be guaranteed by an institution that is a member of one of the following recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee. A-12   CONVERSION NOTICE      To convert this Security into the Principal Return and Net Share Amount, if any, check the box: o      To convert only part of this Security, state the principal amount to be converted (must be $1,000 or a multiple of $1,000): $___.      If you want the stock certificate (if any Net Shares are being paid in Common Stock) made out in another person’s name, fill in the form below:                         Your Signature               Date:                                             By:           A-13   CHANGE OF CONTROL PURCHASE NOTICE To: Fair Isaac Corporation      The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from Fair Isaac Corporation (the “Company”) as to the occurrence of a Change in Control with respect to the Company and requests and instructs the Company to redeem the entire principal amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Security at the Change in Control Purchase Price, together with accrued interest to, but excluding, such date, to the registered Holder hereof.               Dated:                                                       Signature(s)                         Signature(s) must be guaranteed by a qualified guarantor institution with membership in an approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.                                   Signature Guaranty   Principal amount to be redeemed         (in an integral multiple of $1,000, if less than all):                               NOTICE: The signature to the foregoing Election must correspond to the Name as written upon the face of this Security in every particular, without alteration or any change whatsoever. A-14   REPURCHASE ELECTION NOTICE      The undersigned registered owner of this Security hereby requests and instructs Fair Isaac Corporation (the “Company”) to repurchase the entire principal amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Security at the Repurchase Price on August 15, ___, together with accrued interest to, but excluding, such date, to the registered Holder hereof.               Dated:                                                       Signature(s)                                                 Signature Guaranty Principal amount to be redeemed                       (in an integral multiple of $1,000, if less than all):                               as written upon the face of this Security in every particular, without alteration or any change whatsoever. A-15   SCHEDULE OF EXCHANGES OF SECURITIES3      The following exchanges, redemptions, repurchases or conversions of a part of this Global Security have been made:               Principal Amount             of this Global Security   Authorized       Amount of Following Such   Signatory of   Amount of Decrease in   Increase in Decrease Date   Securities   Principal Amount   Principal Amount of Exchange (or Increase)   Custodian   of this Global Security   of this Global Security               3   This schedule should be included only if the Security is a Global Security. A-16   CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF TRANSFER RESTRICTED SECURITIES2       Re:   1.5% Senior Convertible Notes, Series B due August 15, 2023 (the “Securities”) of Fair Isaac Corporation.         This certificate relates to $___ principal amount of Securities owned in (check applicable box)         o  book-entry or     o  definitive form by ___ (the “Transferor”).      The Transferor has requested a Registrar or the Trustee to exchange or register the transfer of such Securities.      In connection with such request and in respect of each such Security, the Transferor does hereby certify that the Transferor is familiar with transfer restrictions relating to the Securities as provided in Section 2.12 of the Indenture dated as of March ___, 2005 between Fair Isaac Corporation and Wells Fargo Bank, National Association, as trustee (the “Indenture”), and the transfer of such Security is being made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”) (check applicable box), or the transfer or exchange, as the case may be, of such Security does not require registration under the Securities Act because (check applicable box):        o   Such Security is being transferred pursuant to an effective registration statement under the Securities Act.       o   Such Security is being acquired for the Transferor’s own account, without transfer.       o   Such Security is being transferred to the Company or a Subsidiary (as defined in the Indenture) of the Company.       o   Such Security is being transferred to a person the Transferor reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A or any successor provision thereto (“Rule 144A”) under the Securities Act) that is purchasing for its own account or for the account of a “qualified institutional buyer”, in each case to whom notice has been given that the transfer is being made in reliance on such Rule 144A, and in each case in reliance on Rule 144A.       o   Such Security is being transferred pursuant to and in compliance with an exemption from the registration requirements under the Securities Act in accordance with Rule 144 (or any successor thereto) (“Rule 144”) under the Securities Act.       o exemption from the registration requirements of the Securities Act (other than an exemption referred to above) and as a result of which such Security will, upon such transfer, cease to be a “restricted security” within the meaning of Rule 144 under the Securities Act. A-17        The Transferor acknowledges and agrees that, if the transferee will hold any such Securities in the form of beneficial interests in a Global Security which is a “restricted security” within the meaning of Rule 144 under the Securities Act, then such transfer can only be made pursuant to Rule 144A under the Securities Act and such transferee must be a “qualified institutional buyer” (as defined in Rule 144A).           Date:           (Insert Name of Transferor) A-18

Exhibit 99.1 FLOURAPHARMA, INC. AUDITED FINANCIAL STATEMENTS FOR THE YEARS ENDED DECEMBER 31, 2 F-1 BehlerMick To the Board of Directors and Stockholders FluoroPharma, Inc. REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We have audited the accompanying balance sheets of FluoroPharma, Inc. as of December 31, 2010 and 2009, and the related statements of operations, stockholders' equity and cash flows for each of the years in the two-year period ended December 31, 2010 and for the period June 13, 2003 (inception) to December 31, 2010. FluoroPharma, Inc.'s management is responsible for these financial statements. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of FluoroPharma, Inc. as of December 31, 2010 and 2009, and the results of its operations and its cash flows for each of the years in the two-year period ended December 31, 2010 and for the period June 13, 2003 (inception) to December 31, 2010 in conformity with accounting principles generally accepted in the United States of America. The accompanying financial statements have been prepared assuming the Company will continue as a going concern. As discussed in Note 2, the Company has a history of operating losses, has limited cash resources, and its viability is dependent upon its ability to meet its future financing requirements, and the success of future operations. These factors raise substantial doubt about the Company's ability to continue as a going concern. Management's plans regarding those matters are also described in Note 2. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. /S/ BehlerMick PS BehlerMick PS Spokane, Washington April 8, 2011 F-2 FLUOROPHARMA, INC. (a development stage company) BALANCE SHEETS December 31, 2010 December 31, 2009 ASSETS Current Assets: Cash and cash equivalents $ $ Accounts receivable - Deposits - - Prepaid expenses Total Current Assets Property and equipment, net Intangible assets, net Total Assets $ $ LIABILITIES AND STOCKHOLDERS’ DEFICIT Current Liabilities: Accounts payable $ $ Accrued expenses Short-term convertible notes payable Total Current Liabilities Stockholders’ Equity (Deficit): Preferred stock; $0.001 par value, 1,500,000 authorizedno shares issued and outstanding Common stock - Class A - $0.001 par value, 15,000,000 authorized, 5,778,237 and 5,778,237 shares issued andoutstanding Common stock- Class B - $0.001 par value, 3,500,000authorized, 2,691,788 and 2,691,788 shares issued andoutstanding Additional paid-in capital Deficit accumulated in the development stage ) ) Total Stockholders’ Deficit ) ) Total Liabilities and Stockholders’ Deficit $ $ The accompanying notes are an integral part of these financial statements. F-3 FLUOROPHARMA, INC. (a development stage company) STATEMENTS OF OPERATIONS For the Twelve MonthsEnded December 31 June 13, 2003 (inception) to December 31 , 2010 Operating Expenses: General and administrative $ $ $ Professional fees Research and development Sales and marketing - Amortization Depreciation Total Operating Expenses Loss from Operations ) ) ) Other Income (Expense): Interest income - 61 Gain on debt reconstruction - Loss on disposition of fixed assets ) ) ) Interest expense ) ) ) Total Other Income (Expense), net ) Loss Before Taxes ) ) Provision for Income Taxes - - - Net Loss $ ) $ $ ) Basic and Diluted Net Loss per Common Share $ ) $ Weighted Average Shares Used in per Share Calculation: Basic and Diluted The accompanying notes are an integral part of these financial statements F-4 FLUOROPHARMA, INC. (a development stage company) STATEMENTS OF CASH FLOWS For the Years Ended December 31, 2009 June 13, 2003 (inception) to December 31, CASH FLOWS FROM OPERATING ACTIVITIES: Net loss $ ) $ $ ) Adjustments to reconcile net loss to net cash used by operating activities Depreciation and amortization Issuance of common stock for consulting - - Expenses related to employee stock options Amortization of debt discount - Non-cash fair value of stock options issued to - non-employees for consulting Loss on fixed asset dispositions Gain on debt settlement - ) ) Expenses paid by issuance of preferred stock - - Expenses paid by issuance of debt - - - (Increase) decrease in: Accounts receivable Prepaid expenses ) ) Deposits - - Increase (decrease) in: Accounts payable ) Accrued expenses Net Cash Used by Operating Activities ) ) ) CASH FLOWS FROM INVESTING ACTIVITIES: Cash paid for intangible assets - - ) Cash paid for purchase of property and equipment ) ) ) Net Cash Used by Investing Activities ) ) ) CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from issuance of notes – stockholder - - Proceeds from issuance of short-term convertible notes Advances from stockholders - Proceeds from sale of common stock - Class A - - Proceeds from sale of common stock - Class B - Proceeds from sale of preferred stock - - Net Cash Provided by Financing Activities Net Increase (Decrease) in Cash and Cash Equivalents Cash and Cash Equivalents, Beginning of Period - Cash and Cash Equivalents, End of Period $ $ $ Supplemental Cash Flow Disclosures: Interest expense paid in cash $

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO §240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO §240.13d-2(a) (Amendment No. 2)1 Extreme Networks, Inc. (Name of Issuer) Common Stock, $0.001 Par Value (Title of Class of Securities) 30226D106 (CUSIP Number) JEFFREY C. SMITH STARBOARD VALUE LP 599 Lexington Avenue, 19th Floor New York, New York 10022 (212) 845-7977 STEVEN WOLOSKY, ESQ. OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP Park Avenue Tower 65 East 55th Street New York, New York 10022 (212) 451-2300 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 3, 2011 (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. 1 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 (“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. 30226D106 1 NAME OF REPORTING PERSON STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 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 8 SHARED VOTING POWER - 0 - 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER - 0 - 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.2% 14 TYPE OF REPORTING PERSON CO 2 CUSIP NO. 30226D106 1 NAME OF REPORTING PERSON STARBOARD VALUE AND OPPORTUNITY S LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER 8 SHARED VOTING POWER - 0 - 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER - 0 - 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.4% 14 TYPE OF REPORTING PERSON OO 3 CUSIP NO. 30226D106 1 NAME OF REPORTING PERSON STARBOARD VALUE LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER 8 SHARED VOTING POWER - 0 - 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER - 0 - 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6% 14 TYPE OF REPORTING PERSON PN 4 CUSIP NO. 30226D106 1 NAME OF REPORTING PERSON STARBOARD VALUE GP LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER 8 SHARED VOTING POWER - 0 - 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER - 0 - 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6% 14 TYPE OF REPORTING PERSON OO 5 CUSIP NO. 30226D106 1 NAME OF REPORTING PERSON STARBOARD PRINCIPAL CO LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER 8 SHARED VOTING POWER - 0 - 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER - 0 - 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6% 14 TYPE OF REPORTING PERSON PN 6 CUSIP NO. 30226D106 1 NAME OF REPORTING PERSON STARBOARD PRINCIPAL CO GP LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER 8 SHARED VOTING POWER - 0 - 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER - 0 - 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6% 14 TYPE OF REPORTING PERSON OO 7 CUSIP NO. 30226D106 1 NAME OF REPORTING PERSON JEFFREY C. SMITH 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER - 0 - 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER - 0 - 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6% 14 TYPE OF REPORTING PERSON IN 8 CUSIP NO. 30226D106 1 NAME OF REPORTING PERSON MARK MITCHELL 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER - 0 - 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER - 0 - 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6% 14 TYPE OF REPORTING PERSON IN 9 CUSIP NO. 30226D106 1 NAME OF REPORTING PERSON PETER A. FELD 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)o (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER - 0 - 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER - 0 - 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6% 14 TYPE OF REPORTING PERSON IN 10 CUSIP NO. 30226D106 The following constitutes Amendment No. 2 (“Amendment No. 2”) to the Schedule 13D filed by the undersigned.This Amendment No. 2 amends the Schedule 13D as specifically set forth. Item 3. Source and Amount of Funds or Other Consideration. Item 3 is hereby amended and restated to read as follows: The Shares purchased by Starboard V&O Fund and Starboard LLC were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein.The aggregate purchase price of the 6,621,040Shares beneficially owned by Starboard V&O Fund is approximately $19,444,677, excluding brokerage commissions.The aggregate purchase price of the 2,186,935Shares beneficially owned by Starboard LLC is approximately $6,970,238,excluding brokerage commissions. Item 5. Interest in Securities of the Issuer. Items 5(a)-(c) are hereby amended and restated to read as follows: The aggregate percentage of Shares reported owned by each person named herein is based upon 92,081,315Shares outstanding, as of April 22, 2011, which is the total number of Shares outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission on May 2, 2011. A. Starboard V&O Fund (a) As of the close of business on June 7, 2011, Starboard V&O Fund beneficially owned 6,621,040Shares. Percentage: Approximately 7.2%. (b) 1. Sole power to vote or direct vote: 6,621,040 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 6,621,040 4. Shared power to dispose or direct the disposition: 0 (c) Starboard V&O Fund has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D. B. Starboard LLC (a) As of the close of business on June 7, 2011, Starboard LLC beneficially owned 2,186,935 Shares. Percentage: Approximately 2.4%. (b) 1. Sole power to vote or direct vote: 2,186,935 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 2,186,935 4. Shared power to dispose or direct the disposition: 0 (c) The transactions in the Shares by Starboard LLC since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A, annexed hereto, and are incorporated herein by reference. 11 CUSIP NO. 30226D106 C. Starboard Value LP (a) Starboard Value LP, as the investment manager of Starboard V&O Fund and the manager of Starboard LLC, may be deemed the beneficial owner of the (i) 6,621,040 Shares owned by Starboard V&O Fund and (ii) 2,186,935 Shares owned by Starboard LLC. Percentage: Approximately 9.6%. (b) 1. Sole power to vote or direct vote: 8,807,975 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 8,807,975 4. Shared power to dispose or direct the disposition: 0 (c) Starboard Value LP has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.The transactions in the Shares on behalf of Starboard LLC since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A, annexed hereto, and are incorporated herein by reference. D. Starboard Value GP (a) Starboard Value GP, as the general partner of Starboard Value LP, may be deemed the beneficial owner of the (i) 6,621,040 Shares owned by Starboard V&O Fund and (ii) 2,186,935 Shares owned by Starboard LLC. Percentage: Approximately 9.6%. (b) 1. Sole power to vote or direct vote: 8,807,975 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 8,807,975 4. Shared power to dispose or direct the disposition: 0 (c) Starboard Value GP has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.The transactions in the Shares on behalf of Starboard LLC since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A, annexed hereto, and are incorporated herein by reference. E. Principal Co (a) Principal Co, as a member of Starboard Value GP, may be deemed the beneficial owner of the (i) 6,621,040 Shares owned by Starboard V&O Fund and (ii) 2,186,935 Shares owned by Starboard LLC. Percentage: Approximately 9.6%. (b) 1. Sole power to vote or direct vote: 8,807,975 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 8,807,975 4. Shared power to dispose or direct the disposition: 0 (c) Principal Co has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.The transactions in the Shares on behalf of Starboard LLC since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A, annexed hereto, and are incorporated herein by reference. 12 CUSIP NO. 30226D106 F. Principal GP (a) Principal GP, as the general partner of Principal Co, may be deemed the beneficial owner of the (i) 6,621,040 Shares owned by Starboard V&O Fund and (ii) 2,186,935 Shares owned by Starboard LLC. Percentage: Approximately 9.6%. (b) 1. Sole power to vote or direct vote: 8,807,975 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 8,807,975 4. Shared power to dispose or direct the disposition: 0 (c) Principal GP has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.The transactions in the Shares on behalf of Starboard LLC since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A, annexed hereto, and are incorporated herein by reference. G. Messrs. Smith, Mitchell and Feld (a) Each of Messrs. Smith, Mitchell and Feld, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP, may be deemed the beneficial owner of the (i) 6,621,040 Shares owned by Starboard V&O Fund and (ii) 2,186,935 Shares owned by Starboard LLC. Percentage: Approximately 9.6%. (b) 1. Sole power to vote or direct vote: 0 2. Shared power to vote or direct vote: 8,807,975 3. Sole power to dispose or direct the disposition: 0 4. Shared power to dispose or direct the disposition: 8,807,975 (c) None of Messrs. Smith, Mitchell or Feld has entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.The transactions in the Shares on behalf of Starboard LLC since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A, annexed hereto, and are incorporated herein by reference. 13 CUSIP NO. 30226D106 SIGNATURES After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated:June 7, 2011 STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD By: Starboard Value LP, its investment manager STARBOARD VALUE AND OPPORTUNITY S LLC By: Starboard Value LP, its manager STARBOARD VALUE LP By: Starboard Value GP LLC, its general partner STARBOARD VALUE GP LLC By: Starboard Principal Co LP, its member STARBOARD PRINCIPAL CO LP By: Starboard Principal Co GP LLC, its general partner STARBOARD PRINCIPAL CO GP LLC By: /s/ Jeffrey C. Smith Name: Jeffrey C. Smith Title: Authorized Signatory /s/ Jeffrey C. Smith JEFFREY C. SMITH Individually and as attorney-in-fact for Mark Mitchell and Peter A. Feld 14 CUSIP NO. 30226D106 SCHEDULE A Transactions in the Shares Since the Filing of Amendment No. 1 to the Schedule 13D Shares of Common Stock Purchased Price Per Share($) Date of Purchase STARBOARD VALUE AND OPPORTUNITY S LLC 05/20/11 05/23/11 05/24/11 05/25/11 05/26/11 05/26/11 05/27/11 05/31/11 05/31/11 06/01/11 06/01/11 06/02/11 06/03/11 06/03/11 06/03/11 06/06/11 06/07/11 06/07/11

Name: COMMISSION REGULATION (EC) No 584/97 of 2 April 1997 on the issuing of system B export licences for fruit and vegetables Type: Regulation Subject Matter: trade policy; plant product; tariff policy; international trade Date Published: nan 3 . 4. 97 EN Official Journal of the European Communities No L 88/ 1 I (Acts whose publication is obligatory) COMMISSION REGULATION (EC) No 584/97 of 2 April 1997 on the issuing of system B export licences for fruit and vegetables THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Commission Regulation (EC) No 2190/96 of 14 November 1996 on detailed rules for implementing Council Regulation (EEC) No 1035/72 as regards export refunds on fruit and vegetables ('), as last amended by Regulation (EC) No 324/97 (2), and in par ­ ticular Article 5 (6) thereof, Whereas Commission Regulation (EC) No 27/97 (3) fixes the indicative quantities laid down for the issue of export licences other than those requested in the context of food aid; Whereas, in the light of information now available to the Commission, the indicative quantities have been exceeded in the case of tomatoes, walnuts in shell , oranges, lemons and apples; Whereas as a consequence, for system B licences, applied for between 17 January and 12 March 1997, a rate of refund which is lower than the indicative rate and/or a percentage for the issuing of licences, should be fixed for tomatoes, walnuts in shell , oranges, lemons and apples, HAS ADOPTED THIS REGULATION: Article 1 The percentages for the issuing of system B export licences, as referred to in Article 5 of Regulation (EC) No 2190/96, and applied for between 17 January and 12 March 1997, by which the quantities applied for and the rates of refund applicable must be multiplied, shall be as fixed in the Annex hereto . The above subparagraph shall not apply to licences applied for in connection with food-aid operations as provided for in Article 10 (4) of the Agreement on Agri ­ culture concluded during the Uruguay Round of multilat ­ eral trade negotiations . Article 2 This Regulation shall enter into force on 3 April 1997 . This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels, 2 April 1997 . For the Commission Franz FISCHLER Member of the Commission (') OJ No L 292, 15 . 11 . 1996, p . 12 . (2) OJ No L 52, 22. 2. 1997, p. 10 . 3 OJ No L 6, 10 . 1 . 1997, p . 11 . No L 88/2 EN Official Journal of the European Communities 3 . 4. 97 ANNEX Percentages for the issuing of licences and rates of refund applicable to system B licences applied for between 17 January and 12 March 1997 Product Destination or group of destinations Percentage for the issuing of licences Rate of refund (ECU/ tonne net) Tomatoes F 92% 10,5 Shelled almonds F 100 % 77,9 Hazelnuts in shell F 100 % 91,0 Shelled hazelnuts F 100 % 175,6 Walnuts in shell F 62 % 105,6 Oranges XYC 93 % 76,7 Lemons F 100 % 65,7 Table grapes Apples XY 26% 38,0 ZD 81 % 72,0 Peaches and nectarines

Servicer's Certificate for the Collection Period December 01, 2012 through December 31, 2012 for Payment Date of January 15, 2013 Toyota Auto Receivables 2010-B Owner Trust Toyota Auto Finance Receivables, LLC SELLER SERVICER Collection Period 31 30/360 Days 30 Interest Accrual Period 29 Actual/360 Days 29 Initial Principal Final Beginning Beginning Principal Prior Principal Current Ending Ending Class Balance Scheduled Principal Principal Distributable Principal Distribution Principal Principal Principal Payment Date Balance Factor Amount Carryover Amount Carryover Balance Factor A-1 7/15/11 A-2 8/15/12 A-3 2/18/14 A-4 1/17/17 Total Interest Prior Interest Current Total Class Interest Rate Distributable Interest Distribution Interest Principal & Amount Carryover Amount Carryover Interest Distribution A-1 0.56012% A-2 0.74000% A-3 1.04000% A-4 1.47000% Total Credit Enhancement Reserve Account Overcollateralization Initial Deposit Amount Aggregate Pool Balance Specified Reserve Account Amount Total Note Balance: Beginning Balance Overcollateralization Amount: Withdrawals Target Overcollateralization Amount: Amount Available for Deposit Amount Deposited to the Reserve Account Reserve Account Balance Prior to Release Reserve Account Required Amount Reserve Account Release to Seller Ending Reserve Account Balance Page 1 of 4 Servicer's Certificate for the Collection Period December 01, 2012 through December 31, 2012 for Payment Date of January 15, 2013 Toyota Auto Receivables 2010-B Owner Trust Toyota Auto Finance Receivables, LLC SELLER SERVICER Collection Period 31 30/360 Days 30 Interest Accrual Period 29 Actual/360 Days 29 Liquidations of Charge-offs and Repossessions Amount Liquidated Contracts 38 vehicles Gross Principal of Liquidated Receivables Principal of Repurchased Contracts, previously charged-off Net Liquidation Proceeds Received During the Collection Period Recoveries on Previously Liquidated Contracts Net Credit Losses for the Collection Period Cumulative Credit Losses for all Periods vehicles Repossessed in Current Period 8 vehicles Delinquent and Repossessed Contracts Percentage of Current Percentage of Current Month Number Month Receivables of Contracts Units Pool Balance Balance 30-59 Days Delinquent 1.26% 1.40% 60-89 Days Delinquent 0.25% 0.30% 90-119 Days Delinquent 0.11% 52 0.14% 120 or More Days Delinquent 0.00% 0 0.00% Total Delinquencies Repossessed Vehicle Inventory 12 * Included with Delinquencies Above Pool Data Original Prior Month Current Month Receivables Pool Balance Number of Contracts Weighted Average APR 5.63% 5.48% 5.47% Weighted Average Remaining Term (Months) Page 2 of 4 
 Servicer's Certificate for the Collection Period December 01, 2012 through December 31, 2012 for Payment Date of January 15, 2013 Toyota Auto Receivables 2010-B Owner Trust Toyota Auto Finance Receivables, LLC SELLER SERVICER Collection Period 31 30/360 Days 30 Interest Accrual Period 29 Actual/360 Days 29 Collections Amount Principal Payments Received Prepayments in Full Interest Payments Received Aggregate Net Liquidation Proceeds Interest on Repurchased Contracts Total Collections Principal of Repurchased Contracts Principal of Repurchased Contracts, prev charged-off Adjustment on Repurchased Contracts Total Repurchased Amount Distributions Calculated Amount Amount Paid Shortfall Servicing Fee Interest - Class A-1 Notes Interest - Class A-2 Notes Interest - Class A-3 Notes Interest - Class A-4 Notes Priority Principal Payment Reserve Account Deposit Regular Principal Payment Additional Trustee Fees and Expenses Excess Amounts to Depositor N/A Noteholder Distributions Interest Per $1000 of Principal Per $1000 of Amount Per $1000 of Distributed Original Balance Distributed Original Balance Distributed Original Balance Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes Page 3 of 4 Servicer's Certificate for the Collection Period December 01, 2012 through December 31, 2012 for Payment Date of January 15, 2013 Toyota Auto Receivables 2010-B Owner Trust Toyota Auto Finance Receivables, LLC SELLER SERVICER I hereby certify to the best of my knowledge that the report provided is true and correct. /s/ Wei Shi Wei Shi Vice President Treasury, Finance & Analytics Page 4 of 4

EMPLOYMENT AGREEMENT This employment agreement (this "Agreement"), dated as of February 23, 2010, is made by and between China Advanced Construction Materials Group, Inc., a Delaware corporation (the "Company") and Jeremy Goodwin (the “Executive”) (collectively, the “Parties”). WHEREAS, the Company is a publicly traded company whose shares are quoted on the NASDAQ Global Market; WHEREAS, the Board of Directors of the Company appointed the Executive as President effective as of January 25, 2010 (the "Effective Date"), and Chief Financial Officer effective on or about February 15, 2010 (as set forth herein); and WHEREAS, the Executive will have the duties and responsibilities as described in Section 1 of the Agreement during the period when the Executive is the President and Chief Financial Officer of the Company; and WHEREAS, the Parties wish to establish the terms of the Executive’s employment with the Company; NOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be 1. POSITION/DUTIES. (a) During the Employment Term (as defined in Section 2 below), the Executive shall serve as the President of the Company and, subject to Section 1(b) below, as the Chief Financial Officer of the Company. (i) In this capacity the Executive shall be responsible for leading the Company’s efforts in obtaining financing for the Company by way of one or more public offerings in the amounts and on the schedules requested by the Chief Executive Officer of the Company, including but not limited to overseeing underwriters, counsels and auditors, and preparing and/or reviewing requisite documentations in connection with such transactions, and shall perform certain investor relations activities as requested by the Chief Executive Officer. (ii) During the Term of Employment, the Executive shall obtain at least one concrete project for the Company, on terms reasonably acceptable to the Chief Executive Officer, that shall generate gross revenues to the Company of at least $5,000,000 (the “Contract Value”). If this Agreement is extended beyond the Initial Term, then during the Additional Term the Executive shall obtain at least one concrete project for the Company each year, on terms reasonably acceptable to the Chief Executive Officer, that shall generate gross revenues of the Contract Value; provided that the required Contract Value each year shall increase by 10% from the Contract Value of the previous year. 1 (iii) Executive shall also be responsible for planning and establishing a stock option plan and option grant model for the Company by no later than May 31, 2010, and thereafter shall be responsible for the monitoring and enforcement of such system under the direction of the compensation committee of the board. (iv) During the Term of Employment, the Executive shall be responsible for overseeing the Company’s interaction with outside legal counsel and overseeing Human Resource activities. (v) The Executive shall be responsible for completing the management procedure re-design and initial compliance with the requirements of the Sarbanes-Oxley Act before the end of June 2010. (vi) The Executive shall be responsible for creating and implementing an international market development, and shall present such plan to the board before the end of 2010. (b) Beginning on the date on which the current Chief Financial Officer of the Company ceases to serve in such capacity (anticipated to be on or about February 15, 2010), the Executive shall serve as the Chief Financial Officer of the Company. During such time as the Executive serves as the Chief Financial Officer of the Company, the Executive’s duties shall include, in addition to the Executive’s duties as President: (i) working with the Company’s U.S. legal counsel and auditors to implement, monitor and oversee the Company’s accounting, reporting and financial controls, ongoing compliance with the requirements of the Sarbanes-Oxley Act, the Securities Act of 1933, the Securities Exchange Act of 1934, and the listing rules of the NASDAQ Global Market; and (ii) advising the Board of the Directors with respect to the Company’s internal controls and procedures, including disclosure controls and procedures. Notwithstanding anything to the contrary herein, the Executive acknowledges that any termination of his position as Chief Financial Officer during the term hereof shall not, in any way, constitute a breach of this Agreement by the Company; provided that any such termination shall not reduce the compensation described in Section 3 hereof. The Company agrees to retain a qualified Finance Manager and Internal Controller (which positions may be held by one person) with reasonable knowledge and experience in the preparation of U.S. GAAP financial statements, U.S public company reporting obligations, including obligations under the Sarbanes-Oxley Act of 2002, as soon as practicable. 2 (c) During the Employment Term, the Executive shall report directly to the Chief Executive Officer and the Board of Directors of the Company. The Executive shall obey the lawful directions of the Chief Executive Officer and the Board of Directors to whom the Executive reports and shall use his diligent efforts to promote the interests of the Company and to maintain and promote the reputation thereof. (d) During the Employment Term, the Executive shall maintain his residence in Hong Kong and shall be expected to travel extensively between and within China, Hong Kong and the United States and to spend significant time in Beijing, China as directed by the Chief Executive Officer. In the event that the Executive is required by the Chief Executive Officer to relocate his residence to Beijing, China at any time during the Employment Term, the Company shall provide the Executive with necessary allowance and full coverage of all the costs in connection with the relocation. (e) During the Employment Term, the Executive shall use his best efforts to perform his duties under this Agreement and shall devote all of his business time, energy and skill in the performance of his duties with the Company. The Executive shall not during the Employment Term (except as a representative of the Company) be directly or indirectly engaged or concerned in any other business activity, unless Executive notifies the Board in advance of Executive’s intent to engage in other paid or unpaid work, and receives the Board’s express written consent to do so. Notwithstanding the foregoing, it is understood that Executive shall be entitled to serve on the Board of Directors of other business organizations so long as such service does not constitute an actual or apparent conflict of interest, and so long as the consent of the Board (which shall not unreasonably be withheld) is obtained for such service; and provided further that the Board has consented to Executive’s continued service on the Boards of Directors and advisory boards set forth on Schedule 1(e) hereof. Nothing in this Section shall prohibit Executive from participating in social, civic or professional associations or engaging in passive outside investment activities which may require a limited portion of time and effort to manage, so long as such activities do not interfere with the performance of Executive’s duties hereunder nor compete, in any way, with the products or services offered by the Company. 2. EMPLOYMENT TERM. Except for earlier termination as provided in Section 6, the Executive's employment as President under this Agreement shall begin on the Effective Date and Executive’s employment as Chief Financial Officer shall begin on the date set forth in Section 1(b) above and (subject to Section 1(b) above) employment under both positions shall end on January 4, 2011 (the "Initial Term"). At the end of the Initial Term (and any renewal period provided for herein), this Agreement shall automatically be extended for additional one year periods (the “Additional Term”) unless either party hereto gives a written notice of non-renewal delivered not less than thirty (30) days prior to the end of the Initial Term or any Additional Term. The Company may elect to give a written notice of non-renewal with respect to Executive’s continued employment as Chief Financial Officer after any term but retain his services, and continue the term of employment, as President. However, the Executive may not provide a notice of non-renewal for a single position and any notice of non-renewal from Executive shall apply to both his positions as President and Chief Financial Officer. The amount of compensation payable to the Executive during any extension of the Initial Term shall be discussed and agreed upon by both parties in writing 30 days before the expiration of the Initial Term. The Initial Term and any Additional Term shall be referred to herein as the "Employment Term." 3 3. COMPENSATION. (a) Base Salary. In consideration of the services to be rendered hereunder, the Company hereby agrees to pay the Executive an initial annual base salary of $180,000 payable in equal semimonthly installments in accordance with the usual practice of the Company (the “Base Salary”). Unless otherwise agreed in writing, during any Additional Term, the Executive’s Base Salary shall increase by 10% annually following the first anniversary of the Effective Date. The Executive will be responsible for his own income tax payable to relevant federal and state authorities in the United States. Upon the Effective Date, the Base Salary shall be deemed payable beginning on January 4, 2010. (b) Restricted Stock Award. Subject to the terms and conditions provided in this Agreement and the Restricted Stock Agreement between the Company and the Executive, the Company agrees to grant the Executive, pursuant to the Company’s 2009 Equity Incentive Plan, 50,000 restricted shares of the common stock of the Company. The restricted shares granted hereby shall vest as follows:     (i) 12,500 shares shall vest on April 4, 2010;            (ii) 12,500 shares shall vest on July 4, 2010;            (iii) 12,500 shares shall vest on October 4, 2010; and            (iv) 12,500 shares shall vest on January 4, 2011. (c) Stock Option Grant. Subject to the terms and conditions provided in this Agreement and the Stock Option Agreement between the Company and the Executive, the Company agrees to grant the Executive, pursuant to the Company’s 2009 Equity Incentive Plan, a stock option to purchase up to 100,000 shares of the common stock of the Company. The option shall have an exercise price of $5.38 and shall be exercisable on a cashless, or net exercise basis. The option granted hereby shall vest as follows: (i) 35,000 shares shall vest on March 5, 2010 and 15,000 shares shall vest on March 31, 2010; provided, that the Board, or the Compensation Committee, may terminate or postpone the vesting with respect to such option shares if the Company fails to close public offerings during the first calendar quarter of 2010 in the amounts and on the schedule and terms reasonably requested by the Chief Executive Officer pursuant to Section 1(a)(i) hereof (“First Quarter Financings”); and (ii) Up to 50,000 shares shall vest on July 15, 2010 as follows (A) 10,000 of such shares shall vest if the Company closes public offerings during the second calendar quarter of 2010 of at least 20% of any target amount reasonably requested, on the schedules and terms reasonably requested by, the Chief Executive Officer pursuant to Section 1(a)(i) hereof, excluding the First Quarter Financings (the “Second Quarter Financings”); 4 (B) 20,000 of such shares shall vest if the Company closes at least 40% of the Second Quarter Financings; (C) 30,000 of such shares shall vest if the Company closes at least 60% of the Second Quarter Financings; (D) 40,000 of such shares shall vest if the Company closes at least 80% of the Second Quarter Financings; and (E) all 50,000 of such shares shall vest if the Company closes all of the Second Quarter Financings. Notwithstanding the foregoing, if (A) the Executive obtains reasonable commitments of investment banks, placement agents and/or investors to provide financing by way of one or more public offerings in the amounts and on the schedules and terms reasonably requested by the Chief Executive Officer, and such arrangements are rejected by the Chief Executive Officer or the Board, or (B) the Company fails to close such financings voluntarily, (C) any such financing is terminated as a result of a material breach of a material agreement by the Company or (D) or the Company does not meet the earnings or earnings per share milestones set by the Chief Executive Officer as conditions precedent for any such financings, then the vesting for such shares set forth above shall not be terminated or postponed. Any termination or deferral of vesting as set forth herein shall not be deemed to be “Good Reason” as defined below. 4. EMPLOYEE BENEFITS. (a) Benefit Plans. The Executive shall be eligible to participate in any employee benefit plan of the Company, including, but not limited to, equity, pension, thrift, profit sharing, medical coverage, education, or other retirement or welfare benefits that the Company has adopted or may adopt, maintain or contribute to the benefit of its senior executives, at a level commensurate with his positions, subject to satisfying the applicable eligibility requirements. The Company may at any time or from time to time amend, modify, suspend or terminate any employee benefit plan, program or arrangement for any reason in its sole discretion. (b) Vacation. The Executive shall be entitled to an annual paid vacation in accordance with the Company's policy applicable to senior executives from time to time in effect, but in no event less than two weeks per calendar year (as prorated for partial years), which vacation may be taken at such times as the Executive elects with due regard to the needs of the Company. The carry-over of vacation days shall be in accordance with the Company's policy applicable to senior executives from time to time in effect. 5 (c) Business and Entertainment Expenses. Upon presentation of appropriate documentation, the Executive shall be reimbursed for all reasonable and necessary business and entertainment expenses, including business related travel expenses, incurred in connection with the performance of his duties hereunder, all in accordance with the Company's expense reimbursement policy applicable to (d) Insurance. Upon presentation of appropriate documentation, the Executive shall be reimbursed for all reasonable expenses in connection with the Executive’s international health insurance coverage (substantially similar to the coverage offered by CIGNA International). Prior to enrolling in any health insurance plan, the Executive obtain the written consent of the Company, which consent shall not be unreasonably withheld. The Company shall also provide Officer's and Director's Insurance Coverage of at least $2,000,000 with the Company’s current insurance provider or such other insurance provider approved by the Board for provision of coverage to officers and directors of the Company generally. (e) Legal Assistance. The Company will authorize its U.S. legal counsel to provide Executive with legal assistance, and shall pay the related legal expenses, with respect to U.S. tax issues in connection with the payment of compensation hereunder, filings with the U.S. Securities and Exchange Commission and other issues related to Executive’s performance hereunder; provided, that the parties agree that in the event of any conflict between the Company and the Executive, such firm or firms shall be authorized to continue to represent the Company. 5. TERMINATION. The Executive's employment and the Employment Term shall terminate on the first of the following to occur: (a) Disability. The thirtieth (30th) day following a written notice of termination by the Company to the Executive due to Disability. For purposes of this Agreement, "Disability" shall mean a determination by the Company in accordance with applicable law that due to a physical or mental injury, infirmity or incapacity, the Executive is unable to perform the essential functions of his job with or without accommodation for 180 days (whether or not consecutive) during any 12-month period. (b) Death. Automatically on the date of death of the Executive. (c) Cause. Immediately upon written notice of termination by the Company to the Executive for Cause. "Cause" shall mean, as determined by the Board (or its designee) (1) conduct by the Executive in connection with his employment duties or responsibilities that is fraudulent, unlawful or grossly negligent; (2) the willful misconduct of the Executive; (3) the willful and continued failure of the Executive to perform the Executive's duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness); (4) the commission by the Executive of any felony (or the equivalent under the law of the People's Republic of China) (other than traffic-related offenses) or any crime involving moral turpitude; (5) violation of any material policy of the Company or any material provision of the Company's code of conduct, employee handbook or similar documents; or (6) any material breach by the Executive of any provision of this Agreement or any other written agreement entered into by the Employee with the Company. 6 (d) Without Cause. On the tenth (10th) day following written notice by either Party to the other Party without Cause, other than for death or Disability of the Executive. (e) Good Reason. The tenth (10th) day following a written notice of termination by the Executive for Good Reason. “Good Reason” means, without Executive’s consent: (i) a material diminution in Executive’s Base Salary; (ii) a material diminution in Executive’s responsibilities, duties or authority as the President of the Company, which causes Executive’s position with the Company to have less responsibility or authority than Executive’s position immediately prior to such change, provided that any such change is not in connection with the termination of Executive’s employment with the Company; or (iii) a material breach by the Company of the terms or conditions of this Agreement; provided however, if any of the conditions described in subsections (i)-(iii) above occur, Executive is required to provide written notice of such condition to the Board within fifteen (15) days of the initial occurrence of the condition, and, following such written notice, the Company shall then have fifteen (15) days to remedy such condition, before the existence of any such condition (which is not otherwise remedied by the Company) shall constitute “Good Reason.” 6. CONSEQUENCES OF TERMINATION. (a) Disability. Upon termination of the Employment Term because of the Executive's Disability, the Company shall pay or provide to the Executive (1) any unpaid Base Salary and any accrued vacation through the date of termination; (2) any unpaid Annual Bonus accrued with respect to the fiscal year ending on or preceding the date of termination; (3) reimbursement for any unreimbursed expenses properly incurred through the date of termination; and (4) all other payments or benefits to which the Executive may be entitled under the terms of any applicable employee benefit plan, program or arrangement (collectively, "Accrued Benefits"). Additionally, in the event of termination of the Employment Term because of the Executive’s Disability, all non-vested shares of restricted stock and all non-vest options granted to the Executive pursuant to Sections 3(b) and (c) of this Agreement shall be automatically forfeited and returned to the Company unless the Company otherwise notifies the Executive. (b) Death. Upon the termination of the Employment Term because of the Executive's death, the Executive's estate shall be entitled to any Accrued Benefits. Additionally, in the event of termination of the Employment Term because of the Executive’s death, all non-vested shares of restricted stock and all non-vest options granted to the Executive pursuant to Sections 3(b) and (c) of this Agreement shall be automatically forfeited and returned to the Company unless the Company otherwise notifies the Executive’s estate. (c) Termination for Cause. Upon the termination of the Employment Term by the Company for Cause, the Company shall pay to the Executive any Accrued Benefits. Additionally, in the event of termination of the Employment Term for Cause, all non-vested shares of restricted stock and all non-vested options granted to the Executive pursuant to Sections 3(b) and (c) of this Agreement shall be automatically forfeited and returned to the Company. 7 (d) Termination without Cause or for Good Reason. Upon the termination of the Employment Term by the Company without Cause, or by the Executive for Good Reason, the Company shall pay or provide to the Executive (i) the Accrued Benefits and (ii) the Base Salary in effect on the date of such termination for a period of six (6) months, payable in installments in accordance with the Company’s normal payroll practices. Additionally, in the event of termination of the Employment Term without Cause or for Good Reason, all shares of restricted stock and all options granted to the Executive pursuant to Sections 3(b) and (c) of this Agreement shall immediately and automatically vest in full. 7. SERVICE ON THE BOARD OF DIRECTORS. (a) Non-Independent Director. The Executive acknowledges that, as of the Effective Date, the Executive will no longer be deemed to be an “independent director” within the meaning of the applicable NASDAQ listing standards, and that if the Company shall not have appointed an “independent director” within fifteen (15) calendar days of the Effective Date, the Executive shall, on such fifteenth day, resign from the Board of Directors, effective immediately. (b) Amendment of Director Agreement. During the Employment Period, Executive will serve as a member of the Company’s Board until such time as Executive resigns or is properly removed as a member of the Board in accordance with the Company’s Articles of Incorporation and/or By-laws. Subject to the terms of this Section 7, the parties hereby agree that the Director Agreement between the Executive and the Company, dated October 3, 2008, as amended (the “Director Agreement”) shall be deemed extended from October 4, 2009 through the end of the Initial Term (the “Extended Term”) under the same terms and conditions set forth in the Director Agreement; provided that: (i) During the period from October 4, 2009 through January 4, 2010 the Executive shall be entitled to the monthly payment currently in effect as set forth on Section 4(a) of the Director Agreement; (ii) As of the Effective Date, the Executive shall no longer be entitled to the monthly fee set forth on Section 4(a) of the Director Agreement; (iii) Executive shall be paid a cash bonus in the amount of $21,750 promptly following the date hereof; and (iv) Executive shall receive an additional fully vested option to purchase 12,500 shares of the Company’s common stock at an exercise price of $4.64, the closing price on the date hereof. Such additional options, together with all previous options granted under the Director Agreement, are intended to be exercisable on a cashless, or net exercise basis. No additional stock options, other than those set forth in this subsection, shall be issued pursuant to Section 4(b) of the Director Agreement in consideration of the services as a director provided during the period from October 4, 2009 through the end of the Extended Term. 8 8. NO ASSIGNMENT. This Agreement is personal to each of the Parties. Except as provided below, no Party may assign or delegate any rights or obligations hereunder without first obtaining the written consent of the other Party hereto; provided, however, that the Company may assign this Agreement to any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company. 9. NOTICES. For the purpose of this Agreement, notices and all other deemed to have been duly given (1) on the date of delivery if delivered by hand, (2) on the date of transmission, if delivered by confirmed facsimile or email, (3) on the first business day following the date of deposit if delivered by guaranteed overnight delivery service, or (4) on the fourth business day following the date delivered or mailed by United States registered or certified Jeremy Goodwin 1012 Third Street Santa Monica, CA 90403 Fax (563) 405-6569 Email: [email protected] China Advanced Construction Materials Group, Inc. Attn.: Xianfu Han Yingu Plaza, 9 Beisihuanxi Road, Suite 1708 Haidian District, Beijing 100080 PRC Fax:__________________________________ Email: __________________________________ or to such other address as either Party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. 10. PROTECTION OF THE COMPANY'S BUSINESS. (a) Confidentiality. The Executive acknowledges that during the course of his employment by the Company (prior to and during the Employment Term) he has and will occupy a position of trust and confidence. The Executive shall hold in a fiduciary capacity for the benefit of the Company and shall not disclose to others or use, whether directly or indirectly, any Confidential Information regarding the Company, except (i) as in good faith deemed necessary by the Executive to perform his duties hereunder, (ii) to enforce any rights or defend any claims hereunder or under any other agreement to which the Executive is a party, provided that such disclosure is relevant to the enforcement of such rights or defense of such claims and is only disclosed in the formal proceedings related thereto, (iii) when required to do so by a court of law, by any governmental agency having supervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with jurisdiction to order him to divulge, disclose or make accessible such information, provided that the Executive shall give prompt written notice to the Company of such requirement, disclose no more information than is so required, and cooperate with any attempts by the Company to obtain a protective order or similar treatment, (iv) as to such Confidential Information that shall have become public or known in the Company's industry other than by the Executive's unauthorized disclosure, or (v) to the Executive's spouse, attorney and/or his personal tax and financial advisors as reasonably necessary or appropriate to advance the Executive's tax, financial and other personal planning (each an "Exempt Person"), provided, however, that any disclosure or use of Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 9(a) by the Executive. The Executive shall take all reasonable steps to safeguard the Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft. The Executive understands and agrees that the Executive shall acquire no rights to any such Confidential Information. "Confidential Information" shall mean information about the Company, its subsidiaries and affiliates, and their respective clients and customers that is not disclosed by the Company and that was learned by the Executive in the course of his employment by the Company, including, but not limited to, any proprietary knowledge, trade secrets, data and databases, formulae, sales, financial, marketing, training and technical information, client, customer, supplier and vendor lists, competitive strategies, computer programs and all papers, resumes, and records (including computer records) of the documents containing such Confidential Information. 9 (b) Non-Competition. During the Employment Term and for the six (6) month period following the termination of the Executive's employment for any reason (the "Restricted Period"), the Executive shall not, directly or indirectly, without the prior written consent of the Company, provide employment (including self-employment), directorship, consultative or other services to any business, individual, partner, firm, corporation, or other entity that competes with any business conducted by the Company or any of its subsidiaries or affiliates on the date of the Executive's termination of employment or within six (6) months of the Executive's termination of employment in the geographic locations where the Company and its subsidiaries or affiliates engage or propose to engage in such business (the "Business"). Nothing herein shall prevent the Executive from having a passive ownership interest of not more than 2% of the outstanding securities of any entity engaged in the Business whose securities are traded on a national securities exchange. (c) Non-Solicitation of Employees. The Executive recognizes that he possesses and will possess confidential information about other employees of the Company and its subsidiaries and affiliates relating to their education, experience, skills, abilities, compensation and benefits, and inter-personal relationships with customers of the Company and its subsidiaries and affiliates. The Executive recognizes that the information he possesses and will possess about these other employees is not generally known, is of substantial value to the Company and its subsidiaries and affiliates in developing their business and in securing and retaining customers, and has been and will be acquired by him because of his business position with the Company. The Executive agrees that, during the Restricted Period, he will not, directly or indirectly, (i) solicit or recruit any employee of the Company or any of its subsidiaries or affiliates (a "Current Employee") or any person who was an employee of the Company or any of its subsidiaries or affiliates during the six (6) month period immediately prior to the date the Executive's employment terminates (a "Former Employee") for the purpose of being employed by him or any other entity, or (ii) hire any Current Employee or Former Employee. 10 (d) Non-Solicitation of Customers. The Executive agrees that, during the Restricted Period, he will not, directly or indirectly, solicit or attempt to solicit (i) any party who is a customer or client of the Company or its subsidiaries, who was a customer or client of the Company or its subsidiaries at any time during the six (6) month period immediately prior to the date the Executive's employment terminates or who is a prospective customer or client that has been identified and targeted by the Company or its subsidiaries for the purpose of marketing, selling or providing to any such party any services or products offered by or available from the Company or its subsidiaries, or (ii) any supplier or vendor to the Company or any subsidiary to terminate, reduce or alter negatively its relationship with the Company or any subsidiary or in any manner interfere with any agreement or contract between the Company or any subsidiary and such supplier or vendor. (e) Property. The Executive acknowledges that all originals and copies of materials, records and documents generated by him or coming into his possession during his employment by the Company or its subsidiaries are the sole property of the Company and its subsidiaries ("Company Property"). During the Employment Term, and at all times thereafter, the Executive shall not remove, or cause to be removed, from the premises of the Company or its subsidiaries, copies of any record, file, memorandum, document, computer related information or equipment, or any other item relating to the business of the Company or its subsidiaries, except in furtherance of his duties under this Agreement. When the Executive's employment with the Company terminates, or upon request of the Company at any time, the Executive shall promptly deliver to the Company all copies of Company Property in his possession or control. (f) Non-Disparagement. Executive shall not, and shall not induce others to, Disparage the Company or its subsidiaries or affiliates or their past and present officers, directors, employees or products. "Disparage" shall mean making comments or statements to the press, the Company's or its subsidiaries' or affiliates' employees or any individual or entity with whom the Company or its subsidiaries or affiliates has a business relationship which would adversely affect in any manner (1) the business of the Company or its subsidiaries or affiliates (including any products or business plans or prospects), or (2) the business reputation of the Company or its subsidiaries or affiliates, or any of their products, or their past or present officers, directors or employees. 11 (g) Cooperation. Subject to the Executive's other reasonable business commitments, following the Employment Term, the Executive shall be available to cooperate with the Company and its outside counsel and provide information with regard to any past, present, or future legal matters which relate to or arise out of the business the Executive conducted on behalf of the Company and its subsidiaries and affiliates, and, upon presentation of appropriate documentation, the Company shall compensate the Executive for any out-of-pocket expenses reasonably incurred by the Executive in connection therewith. (h) Equitable Relief and Other Remedies. The Executive acknowledges and agrees that the Company's remedies at law for a breach or threatened breach of any of the provisions of this Section 9 would be inadequate and, in recognition of this fact, the Executive agrees that, in the event of such a breach or threatened or attempted breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available. In addition, without limiting the Company's remedies for any breach of any restriction on the Executive set forth in this Section 9, except as required by law, the Executive shall not be entitled to any payments set forth in Section 6(d) hereof if the Executive has breached the covenants applicable to the Executive contained in this Section 9, the Executive will immediately return to the Company any such payments previously received under Section 6(d) upon such a breach, and, in the event of such breach, the Company will have no obligation to pay any of the amounts that remain payable by the Company under Section 6(d). (i) Reformation. If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 9 is excessive in duration or scope or is unreasonable or unenforceable under the laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the law of that state. The Executive acknowledges that the restrictive covenants contained in this Section 9 are a condition of this Agreement and are reasonable and valid in temporal scope and in all other respects. (j) Liability. Notwithstanding the provisions in this Section 9 the Executive shall not be liable for any mistakes of fact, errors of judgment, for losses sustained by the Company or any subsidiary or for any acts or omissions of any kind, unless caused by the negligence or willful or intentional misconduct of the Executive or any person or entity acting for or on behalf of the Executive. (k) Survival of Provisions. The obligations contained in this Section 9 shall survive in accordance with their terms the termination or expiration of the Executive's employment with the Company and shall be fully enforceable thereafter. 11. INDEMNIFICATION. The Executive shall be indemnified to the extent permitted by the Company's organizational documents and to the extent required by law. 12 12. SECTION HEADINGS AND INTERPRETATION. The section headings used in this Agreement are included solely for convenience and shall not affect, or be used in connection with, the interpretation of this Agreement. Expressions of inclusion used in this agreement are to be understood as being without limitation. 13. SEVERABILITY. The provisions of this Agreement shall be deemed severable and the invalidity of unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. 14. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same Agreement. 15. GOVERNING LAW AND VENUE. The validity, interpretation, construction and York without regard to its conflicts of law principles. The Parties agree irrevocably to submit to the exclusive jurisdiction of the courts located in New York, New York, for the purposes of any suit, action or other proceeding brought by any Party arising out of any breach of any of the provisions of this Agreement and hereby waive, and agree not to assert by way of motion, as a defense or otherwise, in any such suit, action, or proceeding, any claim that it is not personally subject to the jurisdiction of the above-named courts, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper, or that the provisions of this Agreement may not be enforced in or by such courts. 16. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the agreements, written or oral, with respect thereto. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set 17. WAIVER AND AMENDMENT. No provision of this Agreement may be modified, amended, waived or discharged unless such waiver, modification, amendment or discharge is agreed to in writing and signed by the Executive and such officer or director as may be designated by the Board. No waiver by either Party at any time of any breach by the other Party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver or similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. 18. WITHHOLDING. The Company may withhold from any and all amounts payable under this Agreement such federal, state, local and foreign taxes as may be required to be withheld pursuant to any applicable law or regulation. 19. AUTHORITY AND NON-CONTRAVENTION. The Executive represents and warrants to the Company that he has the legal right to enter into this Agreement and to perform all of the obligations on his part to be performed hereunder in accordance with its terms and that he is not a party to any agreement or understanding, written or oral, which could prevent him form entering into this Agreement or performing all of his obligations hereunder. 13 20. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.       14 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CHINA ADVANCED CONSTRUCTION MATERIALS GROUP, INC. /s/ Xianfu Han                                                       By: Xianfu Han  EXECUTIVE /s/ Jeremy Goodwin                                              By: Jeremy Goodwin       15 SCHEDULE 1(e) Boards of Directors and Advisory Boards Sino Green Land Corporation (OTCBB: SGLA.OB) L&L Energy Inc. (Nasdaq: LLEN)       1

Exhibit 8.1 July 25, 2014 Glimcher Realty Trust 180 East Broad Street Columbus, Ohio 43215 Re: Registration Statement on Form S-3 (Distribution Reinvestment and Share Purchase Plan) Ladies and Gentlemen: You have requested our opinions as to certain U.S. federal income tax matters pertaining to Glimcher Realty Trust, a Maryland real estate investment trust (“ Glimcher ” or the “ Company ”), in connection with the registration of 1,646,200 of its common shares to be offered for purchase under the Distribution Reinvestment and Share Purchase Plan (the “Plan”) pursuant to a registration statement on Form S-3 (the “Registration Statement”) filed on July 25, 2014 with the Securities and Exchange Commission (the “

EXHIBIT 10.1   AMENDED AND RESTATED DOCUMENT SCIENCES CORPORATION MANAGEMENT INCENTIVE RETENTION PLAN FOR SELECT EMPLOYEES   AMENDED AND RESTATED DOCUMENT SCIENCES CORPORATION ARTICLE I Purpose This Management Incentive Retention Plan for Select Employees (the “Plan”) of Document Sciences Corporation, a Delaware corporation (the “Company”) initially became effective on September 12, 2007 (the “Effective Date”) and was amended and restated on December 26, 2007. The Plan was adopted because the Board determined it to be in the best interests of the Company and the stockholders of the Company that the interests of selected key management employees and others providing personal services to the Company be aligned with that of the stockholders and to recognize the absence of compensatory equity grants during the preceding two years. The purposes of the Plan are to provide an incentive to such persons to maximize the valuation of the Company and to provide continuity of management for a period of time following a Change in Control (as defined below) of the Company. ARTICLE II Definitions and Construction 2.1 Definitions. Where the following capitalized words and phrases appear in the Plan, each has the respective meaning set forth below, unless the context clearly indicates to the contrary.   (1) Administrator: The Board shall be the administrator unless and until the Board delegates the administration of the Plan to a Committee, as provided in Section 3.2. Thereafter, all references in the Plan to the Administrator shall be to the Committee.   (2) Award Letter: A written letter from the Company to an employee, notifying such person of his selection as a Participant.   (3) Bonus Pool: The dollar amount of the aggregate bonus pool to be divided among the Participants, calculated in accordance with Section 5.3.   (4) Board: The Board of Directors of the Company.   (5) Cause: Shall have the meaning set forth in Section 5.8.   (6) Change in Control: Either of the following: (i) the acquisition by one person (or more than one person acting as a group) of direct or indirect beneficial ownership of the stock of the Company that, together with stock as to which beneficial ownership is otherwise directly or indirectly held by such person or group, constitutes more than 80% of the total fair market value or total voting power of the stock of the Company whether by merger, reverse merger, consolidation or reorganization of the Company or otherwise; or   1 (ii) any one person, or more than one person acting as a group, directly or indirectly acquires (or has acquired during the 12-month period ending on the Company that have a total gross fair market value equal to or more than 80% of immediately before such acquisition or acquisitions. The terms “person”, “group” and “beneficial ownership” as used in this definition shall be interpreted consistent with Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended, and Rule 13d-3 promulgated thereunder.   (7) CIC Uplift: The amount by which the enterprise value of the Company on the Closing Date (as derived from the CIC Price) exceeds the enterprise value of the Company on the Effective Date (based upon the closing sale price per share of the Company’s common stock on the Effective Date of $9.52 as quoted on the National Association of Securities Dealers Automated Quotation System) which was calculated by the Administrator to be $53,072,553, the valuation of the Company on the Effective Date. For purposes of the Plan, all calculations to determine the valuation of the Company at different per share values assumes that all outstanding compensatory stock options granted by the Company are exercised and the Company uses the proceeds raised from such exercises to repurchase shares at the given per share value.   (8) CIC Price: Shall mean the aggregate “Value” (as defined herein) paid by the purchaser in a Change in Control of the Company sale of all cash, non-cash assets, equity (including stock options, warrants or similar rights to acquire stock) and debt issued or assumed in connection with a Change in Control and shall include, without duplication, the Value of equity and debt securities of any equity created as part of a process to effect a Change in Control. “Value” shall mean (i) with respect to cash, the amount thereof; (ii) with respect to marketable securities, the value assigned to such securities in the definitive agreement relating to the Change in Control or, if not assigned in such agreement, the mean of the closing sale price of such securities as quoted on their principal trading market on the tenth through the sixth consecutive trading days preceding the Closing Date or, if not quoted on such dates, the mean of the closing sale price of such securities as quoted on their principal trading market on the last five consecutive trading days for which a price is so quoted prior to the Closing Date; (iii) if debt, the face amount thereof; and (iv) with respect to non-cash consideration other than marketable securities or debt, the fair market value thereof as reasonably determined by the Board of Directors in good faith. CIC Price shall include (a) any contingent payments, or similar payments anticipated to be made in the future; and (b) any amounts placed into escrow otherwise deferred or held back by any purchaser of the   (9) Closing Date: The date upon which a Change in Control of the Company closes.   (10) Committee: A committee of one or more members of the Board.   (11) Code: The Internal Revenue Code of 1986, as amended.   (12) Covered Parachute Payments: Shall have the meaning set forth in Section 6.1.   2 (13) Covered Payments: Shall have the meaning set forth in Section 6.1.   (14) Disability: Shall mean the Participant (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or last for a continuous period of not less than 12 months, or (ii) is receiving income replacement benefits for a period of not less than three months under the Company’s accident and health plans by reason of any medically determinable   (15) Excise Tax: The excise tax on excess parachute payments under Section 4999 of the Code (or any successor provision or any comparable provision of state, local or foreign law), including any interest or penalties with respect to such excise tax.   (16) Good Reason: Shall have the meaning set forth in Section 5.9.   (17) Incentive Bonus: A cash bonus equal to (i) 32% of the Bonus Pool for each of J. Douglas Winter and Nasser Barghouti, (ii) 22% of the Bonus Pool for John McGannon, (iii) 6% of the Bonus Pool for Daniel Fregeau, (iv) 5% of the Bonus Pool for Edward Calnan and (v) 3% of the Bonus Pool for Todd Schmidt, payable under the Plan in accordance with Article V.   (18) IRS: The Internal Revenue Service of the United States.   (19) Participant: Each of J. Douglas Winter, Nasser Barghouti, John McGannon, Daniel Fregeau, Edward Calnan and Todd Schmidt.   (20) Payment Dates: Each of the following shall constitute a Payment Date unless otherwise provided in any Participant’s Award Letter: the Closing Date, the nine month anniversary of the Closing Date and the eighteen month anniversary of the Closing Date. If such date falls on a day that is not a business day, the Payment Date shall be the next business day thereafter.   (21) Safe Harbor Amount: The largest portion of the Covered Payments that would result in no portion of the Covered Payments being subject to the Excise Tax.   (22) Section 409A: Section 409A of the Code, the final regulations thereunder and any additional guidance provided by the Treasury Department pursuant thereto.   (23) Specified Employee: An employee determined by the Company to be a “specified employee” as defined in Section 1.409A-1(i) of the final regulations promulgated under Section 409A.   (24) Strategic Buyer: A purchaser of the Company that is an operating corporation or other legal entity that is engaged in the active conduct of a trade or business in the technology industry and is acquiring the Company for reasons of cost savings, synergies, increases in market share, complementary products or other similar reasons, and that is not an institutional, financial buyer or other type of financial institution, including but not limited to a private equity firm, venture capital firm, hedge fund, securities brokerage firm, bank or insurance company.   3 (25) Termination Date: Shall have the meaning set forth in Section 4.1. 2.2 Number and Gender. Wherever appropriate herein, words used in the singular will be considered to include the plural, and words used in the plural will be considered to include the singular. The masculine gender, where appearing in the Plan, will be deemed to include the feminine gender. 2.3 Headings. The headings of Articles and Sections herein are included solely for convenience, and, if there is any conflict between such headings and the text of the Plan, the text will control. All references to Articles, Sections and Subsections are to this document unless otherwise indicated. ARTICLE III Administration of Plan 3.1 Administrator. The Plan shall be interpreted and administered by the Administrator. 3.2 Right to Delegate. The Board may from time to time delegate some or all of its powers and responsibilities under the Plan to the Committee. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board (and references in the Plan to the Administrator shall thereafter be to the Committee). The Board may at any time revest in itself any delegated power to administer the Plan. In addition, the Administrator may employ persons to render advice or to execute its directions with regard to any responsibility held hereunder and may authorize any person to whom any of its responsibilities have been properly delegated to employ persons to render such advice or to execute its directions. 3.3 Discretion to Interpret Plan. 3.3.1 Prior to the Closing Date, the Administrator has absolute discretion to construe and interpret any and all provisions of the Plan, including, but not limited to, the discretion to resolve ambiguities, inconsistencies, or omissions conclusively. The decisions of the Administrator will be binding and conclusive upon all persons unless determined to have been arbitrary or capricious. 3.3.2 On or after the Closing Date, the Administrator has discretion to construe and interpret any and all provisions of the Plan, including, but not limited to, the discretion to resolve ambiguities, inconsistencies, or omissions conclusively. The decisions of the Administrator shall be based upon a reasonable, good faith interpretation of the Plan, and shall be subject to de novo review by the arbitrator selected in accordance with Section 9.1 or a trier of fact.   4 3.4 Powers and Duties. In addition to the powers described in Section 3.3 and all other powers specifically granted under the Plan, prior to the Change in Control, the Administrator has all powers necessary or proper to administer the Plan and to discharge his duties under the Plan, including, but not limited to, the following powers: 3.4.1 to determine whether a transaction or series of related transactions results in a Change in Control of the Company; 3.4.2 to determine whether the buyer in the Change in Control transaction qualifies as a Strategic Buyer; 3.4.3 to determine the amount, form, and conditions of any Incentive Bonus under the Plan, and to authorize or deny the payment of benefits under the Plan; 3.4.4 to decrease or increase the amounts set forth in Section 5.5 of the Plan; 3.4.5 to designate a later automatic Termination Date; 3.4.6 to make and enforce such rules, regulations, and procedures as the Administrator may deem necessary or proper for the orderly and efficient administration of the Plan; 3.4.7 to decide all questions concerning the Plan and the eligibility of any person to participate in the Plan; and 3.4.8 to prepare and distribute information explaining the Plan. Notwithstanding anything in the Plan to the contrary, after the entry into a definitive agreement or agreements with an acquiror pursuant to which a Change in Control of the Company will occur up to and including the Closing Date, the Administrator shall not adjust the amount or timing of payment of any Incentive Bonus without the express written consent of the acquiror. The preceding sentence shall no longer apply upon the termination or expiration of such definitive agreement without the transactions contemplated by such agreement having been consummated. After a Change in Control of the Company, the Administrator may not alter the amount of any Incentive Bonus, except in accordance with Section 5.2 or Section 8.1. 3.5 Expenses. Reasonable expenses incident to the administration of the Plan, including, without limitation, the compensation of legal counsel, advisors, and other technical or clerical assistance as may be required, the payment of any bond or security, and any other expenses incidental to the operation of the Plan, that the Administrator determines are proper will be paid by the Company or an affiliate of the Company. 3.6 Indemnification. The Company will indemnify and hold harmless any person exercising authority within the scope of this Article III or at the direction of the Administrator against any and all reasonable expenses and liabilities arising out of such exercise of authority   5 or execution of directions, including, without limitation, any reasonable expenses and liabilities that are caused by or result from an act or omission constituting the negligence of such person in the performance of such functions or responsibilities, but excluding expenses and liabilities arising out of such person’s own gross negligence or reckless or willful misconduct. Expenses against which such person will be indemnified hereunder include, without limitation, the amounts of any settlement or judgment, costs, counsel fees, and related charges reasonably incurred in connection with a claim asserted or a proceeding brought or settlement thereof. ARTICLE IV Term and Participation 4.1 Term. The Plan shall become effective on the Effective Date and, subject to Section 8.2, shall terminate on September 12, 2010 (the “Termination Date”), provided that the Administrator shall have the authority to designate a later Termination Date. Notwithstanding the foregoing, if a payment under this Plan remains due by the Company as of the Termination Date, the Termination Date shall be automatically extended until the date on which each payment that is due and owing by the Company pursuant to Article V has been paid. If the Administrator exercises such authority, references in this Plan to the Termination Date shall be to such later date. 4.2 Commencement of Participation. Each Participant will receive an Award Letter informing him of his selection for participation in the Plan and the effective date of his participation as soon as administratively practicable after such selection by the Administrator. 4.3 Termination of Participation. A Participant will cease to participate in the Plan if: (1) such Participant’s employment with the Company and all subsidiaries and affiliates of the Company is terminated prior to the Closing Date for any reason or (2) no Closing Date has occurred on or before the Termination Date. ARTICLE V Incentive Bonuses 5.1 Conditions for Incentive Bonus. A Participant will be eligible to receive an Incentive Bonus, if any, from the Company or the Company’s successor if (and only if): 5.1.1 The Company has entered into a definitive agreement or agreements with an acquiror pursuant to which a Change in Control of the Company has or will occur, as determined by the Administrator. 5.1.2 The Closing Date occurs on or before the Termination Date for the Plan. 5.1.3 The CIC Price exceeds $53,072,553. 5.1.4 Subject to Sections 5.8 and 5.9, such Participant is continuously employed by the Company or one of its subsidiaries or affiliates as an employee or consultant from the date   6 on which he is selected to commence participation in the Plan up to and including each applicable Payment Date. 5.1.5 Such Participant complies with additional conditions, if any, set forth in his Award Letter, which conditions need not be identical for all Participants. If the conditions set forth in this Section 5.1 are satisfied, then a Participant shall be entitled to receive an Incentive Bonus on the terms set forth in the other provisions of the Plan and the Participant’s Award Letter. 5.2 Amount of Incentive Bonus; Reallocation. The Administrator may provide in its discretion that the amount of a Participant’s Incentive Bonus, if any, will be offset by other payments or reduced for any other reason as set forth in the relevant Award Letter. Any Incentive Bonus forfeited pursuant to the terms of an Award Letter shall be available, but shall not be required, to be re-granted to one or more Participants under the terms of the Plan; provided that, if such forfeiture shall occur after the Company has entered into a definitive agreement or agreements with an acquiror pursuant to which a Change in Control of the Company will occur, the Company shall not re-grant all or any portion of the forfeited Incentive Bonus to one or more Participants without the prior express written consent of the acquiror. The Administrator shall not be obligated to award the entire Bonus Pool to Participants. 5.3 Bonus Pool. If the conditions set forth in Sections 5.1.1 through 5.1.3 are satisfied, the Bonus Pool shall be funded in an amount equal to 15% of the CIC Uplift; provided, however, that the amount of the Bonus Pool shall be capped at $12,545,000. 5.4 Form and Timing of Payment of Incentive Bonus. 5.4.1 Subject to Sections 5.4.2 and 5.10, a Participant who is eligible to receive an Incentive Bonus under Section 5.1 will be paid one-third (1/3) of such Incentive Bonus in three equal installments in cash on each of the Payment Dates. For purposes of this Plan, installment payments shall be treated as a single distribution under Section 409A of the Code. 5.4.2 Notwithstanding the foregoing, if some or all of an Incentive Bonus would not be deductible by the Company pursuant to Section 162(m) of the Code, then the payment of such portion of the Incentive Bonus shall be made as soon as administratively possible following the first day on which the deductibility of such payment shall not be disallowed under Section 162(m) in accordance with the provisions of Section 1.409A-2(b)(7)(i) of the final regulations promulgated under Section 409A, and the Participant shall be credited with interest at the “Wall Street Journal Prime Rate” (or comparable interest rate selected by the Administrator) in effect on the Closing Date and adjusted on the first business day of any subsequent calendar year, compounded monthly. 5.5 Limitations: No Equity Investment. It shall be a condition to receiving an Incentive Bonus pursuant to Section 5.1 that the Participant not receive or otherwise acquire any equity security (including, without limitation, any option, stock appreciation right, phantom stock or   7 other form of derivative security) of the Company or any entity (or any affiliate of an entity) that acquires the Company or the Company’s assets pursuant to the transaction constituting the Change in Control. If the conditions set forth in Section 5.1 are satisfied and the Participant receives or otherwise acquires any equity security in the Change in Control transaction, the following shall apply in place of Sections 2.1(17) and 5.1.3: 5.5.1 If the CIC Price is less than $74,663,364, then the Participant’s Incentive Bonus shall be zero ($0.00). 5.5.2 If the CIC Price equals or exceeds $74,663,364 but is less than $77,765,492, the Participant’s Incentive Bonus shall be equal to 25% of the Participant’s share of the Bonus Pool calculated pursuant to Sections 2.1(17) and 5.3. 5.5.3 If the CIC Price equals or exceeds $77,765,492 but is less than $80,867,620, the Participant’s Incentive Bonus shall be equal to 50% of the and 5.3. 5.5.4 If the CIC Price equals or exceeds $80,867,620 but is less than $83,969,748, the Participant’s Incentive Bonus shall be equal to 75% of the and 5.3. 5.5.5 If the CIC Price equals or exceeds $83,969,748, the Participant’s Incentive Bonus shall be equal to 100% of the Participant’s share of the Bonus Pool calculated pursuant to Sections 2.1(17) and 5.3. 5.6 Additional Conditions. The Administrator may include in the Award Letter one or more conditions on the receipt or continued receipt of an Incentive Bonus that the Administrator deems appropriate. Such conditions are absolutely within the sole discretion of the Administrator and may vary among individual Participants. 5.7 Discretionary Bonus for Non-Strategic Buyer Transaction. On the basis of the CIC Price and the Administrator’s analysis of the Participants’ efforts in securing such CIC Price, the Administrator may waive the conditions set forth in Sections 5.1, 5.5 and/or 5.6 in whole or in part, or for some or all Participants, in its sole discretion. 5.8 Payments upon Termination. 5.8.1 If the Company terminates the Participant’s employment or consultancy for Cause or the Participant terminates his employment other than for Good Reason, death or Disability, the Participant shall forfeit any unpaid portion of his Incentive Bonus. For purposes of this Plan, the term “Cause” shall mean: (1) an act of willful dishonesty taken in connection with the Participant’s responsibilities as an employee and causing damage to the Company; (2) the Participant’s commission of, or plea of nolo contendere to, a felony;   8 (3) the Participant’s insubordination or willful refusal to follow reasonable directives of the Board; and (4) the Participant’s gross negligence or willful misconduct in the performance of his duties as an employee of the Company. 5.8.2 If within 18 months following the Closing Date the Company terminates the Participant’s employment or consultancy other than for Cause or the Participant terminates his employment for Good Reason (in accordance with Section 5.9 below), death or Disability, the Participant shall be entitled to receive any remaining payments under this Plan such that he receives the full amount of his Incentive Bonus within 30 days of the date of his termination. Notwithstanding the foregoing, if the Participant is a Specified Employee at the time of termination, his payment shall be delayed in accordance with Section 5.10 below. 5.9 Termination for Good Reason. The Participant may terminate his employment with the Company for Good Reason upon his giving 30 days written notice to the Company and specifying therein that he is terminating his employment as a result of any of the events described below. An event that is or would constitute Good Reason shall cease to be Good Reason if: (a) the Participant does not terminate his employment within 90 days after the event occurs; or (b) the Company reverses the action or cures the default that constitutes Good Reason within 30 days after the Participant notifies the Company in writing that Good Reason exists. For purposes of this Plan, the term “Good Reason” shall mean the occurrence of any of the following events within 18 months following the Closing Date: 5.9.1 Without the Participant’s prior written consent, a material reduction in his then current annual base salary, other than as part of across-the-board salary reductions affecting all similar executives of the acquiror and its affiliates; 5.9.2 The taking of any action by the Company that would materially diminish the aggregate value of the benefits provided to the Participant under the Participant’s medical, health, accident, disability insurance, life insurance and retirement plans in which he was participating prior to the Change in Control, other than any such reduction which (i) is required by law, (ii) implemented in connection with a general arrangement affecting all employees or affecting the group of employees (senior management) of the acquiror and its affiliates of which the Participant is a member, or (iii) generally applicable to all beneficiaries of such plans and any other plans of the same type sponsored by acquiror and/or its affiliates; 5.9.3 A material reduction in the Participant’s duties and responsibilities; provided that any reduction which may occur as a result of the Company becoming a wholly-owned private subsidiary of an acquiror shall not constitute Good Reason; 5.9.4 A relocation of the Participant’s principal place of business by more than 50 miles, unless Participant consents to such relocation; or 5.9.5 The Company or the acquirer materially breaches any provision of this Plan or the acquiror materially breaches any provision of any employment agreement entered into by the acquiror and the Particpant.   9 5.10 Specified Employee. Notwithstanding the foregoing, if (a) the Company terminates the Participant’s employment or consultancy other than for Cause or the Participant terminates his employment for Good Reason, (b) the Participant is a Specified Employee on the date of termination, and (c) all payments specified in Section 5.8.2 which are subject to Code Section 409A are not made by March 15 of the year immediately following the date of termination, then such amounts may be made to the extent that the amount does not exceed two times the lesser of (i) the sum of the Participant’s annualized compensation based upon the annual rate of pay for services provided to the Company for the taxable year preceding the termination, or (ii) the maximum amount ($225,000 in 2007) that may be taken into account pursuant to Section 401(a)(17) of the Code for the year in which the Participant has terminated. Any amounts exceeding such limit, may not be made before the earlier of the date which is six (6) months after the date of termination or the date of death of the Participant. Any payments that were scheduled to be paid during the six (6) month period following the Participant’s date of termination, but which were delayed pursuant to this Section 5.10, shall be paid without interest on, or as soon as administratively practicable after, the first day following the six (6) month anniversary of the Participant’s date of termination (or, if earlier, the date of the Participant’s death). ARTICLE VI Tax Considerations 6.1 Parachute Payments. Notwithstanding the foregoing, and notwithstanding any prior agreements, arrangements or programs with a Participant (including any prior employment agreements) which prior agreements, arrangements or programs shall be treated as amended to include the same treatment with respect to Sections 280G and 4999 of the Code as are set forth in this Article VI, if the payment of an Incentive Bonus under the Plan by itself or when combined with any other payment or benefit the Participant receives from the Company or any of its subsidiaries or affiliates (collectively “Covered Payments”), would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code (the “Covered Parachute Payments”), and (ii) is or may become subject to the Excise Tax, then the portion of the Covered Payments that would be treated as Covered Parachute Payments, in the aggregate, in excess of the Safe Harbor Amount shall be either (a) paid in full in accordance with the terms governing such payments, or (b) reduced so that the Covered Parachute Payments, in the aggregate in excess of the Safe Harbor Amount, whichever of the foregoing actions, taking into account the applicable federal, state and local employment taxes, income taxes, and the Excise Tax, results in the Participant’s receipt, on an after-tax basis, of the greater amount of the payments notwithstanding that all or some portion of the payments may remain subject to the Excise Tax. If it is determined that any payments are to be reduced as set forth above, the Participant shall have the right to designate which of the payments shall be reduced and to what extent, provided that the Participant may not so elect to the extent that, in the determination of the accounting firm referred to in Section 6.2, such election would cause the Participant to be subject to the Excise Tax.   10 6.2 Accounting. The accounting firm engaged by the Company for general audit purposes as of the day prior to the Closing Date shall make the determination of (i) whether an event described in Section 280G(b)(2)(A)(i) of the Code has occurred, (ii) the value of any Covered Parachute Payments and the Safe Harbor Amount, (iii) whether any reduction in the Covered Payments is required under Section 6.1, and (iv) the amount of any such reduction. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, the Administrator shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Participant at such time as requested by the Company. If the accounting firm determines that no Excise Tax is payable, it shall furnish the Company and the Participant with an opinion reasonably acceptable to the Participant that no Excise Tax will be imposed. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and the Participant. 6.3 IRS Determination. If, notwithstanding any reduction described in Section 6.1, the IRS determines that the Participant is liable for the Excise Tax as a result of the receipt of an Incentive Bonus payable under this Plan or otherwise as described above, then the Participant shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that the Participant challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the “Repayment Amount”. The Repayment Amount with respect to the payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that the Participant’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in the Participant’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, the Participant shall pay the Excise Tax. ARTICLE VII Funding of Plan; Other Benefits; Future Service 7.1 Funding of Plan. The Plan will be unfunded, and benefits provided hereunder will be paid from the general assets of the Company. No segregation of funds by the Company is or shall be required. 7.2 Impact on Other Benefits. Amounts paid under the Plan are intended to have no impact on any other employee benefit plans or other compensatory arrangements sponsored by the Company or made between the Company (or its subsidiaries or affiliates) and the Participant.   11 7.3 Nonalienation of Benefits. Except as the Administrator may otherwise permit or as may be required by law: (1) no interest in or benefit payable under the Plan will be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any action by a Participant to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same will be void and of no effect, and (2) no interest in or benefit payable under the Plan will be in any way subject to any legal or equitable process, including, but not limited to, garnishment, attachment, levy, seizure, or the lien of any person. This provision will be construed to provide each Participant, or other person claiming any interest or benefit in the Plan through a Participant, with the maximum protection against alienation, encumbrance, and any legal and equitable process, including, but not limited to, attachment, garnishment, levy, seizure, or other lien, afforded his interest in the Plan (and the benefits provided thereunder) by law and any applicable regulations. 7.4 No Guarantee of Future Service. Designation as a Participant shall not provide any guarantee or promise to the Participant of continued service with the Company. The Company expressly retains the right to terminate the employment of the Participant consistent with the terms of the Participant’s contractual arrangement with the Company, if any, the terms of which shall be unaffected by the terms of the Plan. This provision shall not be limited or abridged to any extent by any other provision or the Plan which may suggest otherwise and shall be applied regardless of any such provision. Notwithstanding the foregoing, the Company’s obligations to make payments under the Plan shall not be affected by the fact that any defined term or other provision in the Plan is different than or not consistent with any defined term or other provision in any contractual arrangement the Participant has with the Company or in any other compensation or 7.5 No Vested Right to Benefits. No Participant or other person will have any right to, or interest in, any benefits provided under the Plan upon termination of his employment or retirement occurring before the Closing Date or upon termination of Plan, except as specifically provided hereunder. ARTICLE VIII Amendment and Termination 8.1 Right to Amend or Terminate the Plan. Notwithstanding any provision(s) of any other communication, whether oral or written, made by the Company, the Administrator, or any other individual or entity to employees of the Company or to any other individual or entity, the Company, by action of the Board, reserves the absolute and unconditional right to amend or terminate the Plan, including, but not limited to, the right to reduce or eliminate benefits provided pursuant to the provisions of the Plan as such provisions currently exist or may hereafter exist; provided, however, that any amendment or termination of the Plan or a Participant’s Award Letter made after the Closing Date will be void and of no effect to the extent such amendment or termination would reduce or eliminate the amount of any Incentive Bonus for any Participant or otherwise adversely affect the interests of a Participant under the Plan without the written consent of the adversely affected Participant. All amendments to, or termination of, the Plan must be in writing, signed by an authorized officer of the Company,   12 and adopted by the Board. Any oral statements or representations made by the Company, the Administrator, or any other individual or entity that alter, modify, amend, terminate or are inconsistent with the written terms of the Plan will be invalid and unenforceable and may not be relied upon by any Participant or by any other individual or entity. 8.2 Automatic Termination. The Plan shall automatically terminate upon the earlier to occur of the following: 8.2.1 The date of completion of all payments of Incentive Bonuses under the Plan; or 8.2.2 The Termination Date if the Closing Date has not occurred on or before such date. The Administrator shall have the authority to amend the Plan to designate a later Termination Date pursuant to Section 4.1. 8.3 Effect of Amendment or Termination. In the event of an amendment to or termination of the Plan as provided under this Article VIII, each Participant will have no further rights hereunder, and the Company will have no further obligations hereunder, except as otherwise specifically provided under the terms of the Plan as so amended or terminated. ARTICLE IX Dispute Mechanism 9.1 Arbitration. If any legally actionable dispute arises which cannot be resolved by mutual discussion between the Company and the Participant, then each party hereto agrees to resolve that dispute by binding arbitration before an arbitrator experienced in employment law. Said arbitration will be conducted in accordance with the rules applicable to employment disputes of Judicial Arbitration and Mediation Services or such other arbitration service as the Company and the Participant agree upon, and the law of California 9.2 Legal Fees. The Company shall pay all expenses incurred by the Participant in prosecuting or defending any proceeding pursuant to Section 9.1 hereof as they are incurred by the Participant in advance of the final disposition of such proceedings, together with any tax liability incurred by the Participant in connection with the receipt of such amounts; provided, however, that the payment of such expenses incurred in advance of the final disposition of such proceeding shall be made only upon delivery to the Company of an undertaking, by or on behalf of the Participant, to repay all amounts so advanced to the extent the arbitrator in such proceeding affirmatively determines that the Company is the prevailing party, taking into account all claims made by any such party to such proceeding. 9.3 Sole Remedy. The Company and the Participant agree that this promise to arbitrate covers any disputes that the Company may have against the Participant, or that the Participant may have against the Company and all of its affiliated entities and their directors, officers, employees and agents, arising out of or relating to this Plan, including any claims concerning the validity, interpretation, effect or violation of this Plan. The Company and the Participant further agree that arbitration as provided in this Article IX shall be the exclusive and binding remedy for any such dispute and will be used instead of any court action, which is hereby expressly waived, except for any request by either party hereto for temporary or preliminary   13 injunctive relief pending arbitration in accordance with applicable law. The Federal Arbitration Act shall govern the interpretation and enforcement of such arbitration proceeding. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of the State of California, or federal law, if California law is preempted. The arbitration shall be conducted in San Diego, California, unless otherwise mutually agreed. ARTICLE X Miscellaneous Provisions 10.1 Plan Binding on Successors. This Plan and the terms and provisions hereof, including the obligation to make the payments of the Incentive Bonuses to the Participants, shall be binding upon any successor to the Company, whether by merger, consolidation or otherwise. 10.2 Payments to Incompetents. If a Participant entitled to receive any benefits under the Plan is determined by the Administrator in its sole discretion to be incompetent, or is adjudged by a court of competent jurisdiction to be legally incapable of giving valid receipt and discharge for benefits provided under the Plan, the Administrator may pay such benefits to the duly appointed guardian or conservator of such person or to any third party who is determined in the discretion of the Administrator to be eligible to receive any benefit under the Plan for the account of such Participant. Such payment will operate as a full discharge of all liabilities and obligations of the Company, the Administrator, and any other person under the Plan with respect to such benefits. 10.3 Unknown Whereabouts. It will be the affirmative duty of each Participant to inform the Company of, and to keep on file with the Company, his current mailing address. If a Participant fails to inform the Company of his current mailing address, neither the Administrator nor the Company will be responsible for any late payment or loss of benefits or for failure. of any notice to be provided or provided timely under the terms of the Plan to such individual. 10.4 Jurisdiction. The Plan will be construed, enforced, and administered according to the laws of the State of California, excluding any conflict-of-law rule or principle that might refer to the laws of another state. 10.5 Severability. It is the desire and intent of the Company that the provisions of this Plan and the Award Letter be enforced to the fullest extent permissible under the laws and public policies of each jurisdiction in which enforcement is sought. Accordingly, if any provision in this Plan or the Award Letter shall be adjudicated to be invalid or unenforceable, such provision, without any action on the part of the Company or the Participants, shall be deemed amended to delete or to modify the portion adjudicated to be invalid or unenforceable, such deletion or modification to apply only with respect to the operation of such provision in the particular jurisdiction in which such adjudication is made, and such deletion or modification to be made only to the extent necessary to cause the provision as amended to be valid and enforceable. In case any provision of the Plan or Award Letter is held to be illegal, invalid, or unenforceable for any reason, such illegal, invalid, or unenforceable provision will not affect the remaining provisions of the Plan or the Award Letter, as applicable.   14 10.6 Incorrect Information, Fraud, Concealment, or Error. Any contrary provisions of the Plan notwithstanding, in the event that the Administrator or the Company pays a benefit, incurs a liability for failure to so pay a benefit, or makes any overpayment or erroneous payment to any individual or entity because of a human or systems error or because of incorrect information provided by, correct information failed to be provided by, or fraud, misrepresentation, or concealment of any relevant fact (determined in the sole opinion of the Administrator) by, any Participant or other individual, the Administrator will be entitled to recover in any manner deemed necessary or appropriate for such recovery (in the sole opinion of the Administrator) from such Participant or other individual such benefit paid or the amount of such liability incurred and any and all expenses incidental to or necessary for such recovery. Human or systems error or omission will not affect in any way the amount of a benefit to which such Participant is otherwise entitled under the terms of the Plan. 10.7 Withholding of Taxes and Other Deductions. The Company shall satisfy any income and employment tax withholding obligations related to the payment of an Incentive Bonus to the Participant pursuant to the Plan, as well as any other withholding authorized by the Participant or required by applicable law, by deduction from such Incentive Bonus. 10.8 Exclusion from Section 409A. To the extent applicable, it is intended that this Plan and any payment made hereunder shall not be subject to the requirements of Section 409A of the Code. Except to the extent that the payment is deferred pursuant to Section 5.10 any provision that would cause the Plan or any payment hereof to become subject to Section 409A shall have no force or effect until amended to the minimum extent required to be excluded from the application of Section 409A, which amendment may be retroactive to the extent   15 IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies that the foregoing amended and restated Plan was duly adopted by the Board of Directors on December 26, 2007.   /s/ TODD W. SCHMIDT Signature Todd W. Schmidt Print Name   16

CONSENT OF INDEPENDENT REGISTERED ACCOUNTING FIRM We consent to the reference to our firm in the Registration Statement, (Form N-1A), and related Statement of Additional Information of the Empiric Funds, Inc. and to the inclusion of our report dated November 24, 2008 to the Shareholders and Board of Directors ofthe Empiric Funds, Inc. /s/ TAIT, WELLER & BAKER LLP Philadelphia, Pennsylvania January

Freedom, security and justice (annual debate) (Articles 2 and 39 TEU) (debate) (IT) The next item is the debate on the oral question by Jean-Marie Cavada, on behalf of the Committee on Civil Liberties, Justice and Home Affairs, to the Council on the 2007 annual debate on the progress made in the Area of Freedom, Security and Justice (Articles 2 and 39 of the EU Treaty) - B6-0006/2008), and the oral question by Jean-Marie Cavada, on behalf of the Committee on Civil Liberties, Justice and Home Affairs, to the Commission on the 2007 annual debate on the progress made in the Area of Freedom, Security and Justice (Articles 2 and 39 of the EU Treaty) - B6-0007/2008). deputising for the author. - (FR) Mr President, President of the Council, Commissioner, ladies and gentlemen, the debate we are having today is taking place, as you know, in a context characterised by two essential elements. The first of these - I don't have to remind you - is the calendar. Being generous, we have at best 16 operational months before the end of the European Parliament's current term. So you see how, with such a tight timescale, we need to agree on the matters we hope to finalise together in the time that remains. We cannot do everything; we will need to choose and stick to our decision. The second element, Mr President, is even more significant from our point of view. This is that the prospect of the entry into force of the new treaty, you know as well as we do, will lead to major structural changes in our area of competence. I would particularly mention the removal of the artificial separation of policies in the first pillar from those in the third pillar, which will have the effect, in particular, of introducing codecision and subjecting measures that until now were mainly the sole preserve of the Council and fell outside the competence of the European Court of Justice to real judicial control. You will therefore understand our impatience to see the new treaty enter into force as quickly as possible, since it represents both a strengthening of democratic control and a strengthening of the rights of citizens. And you will also understand in the light of these two criteria, which are - I repeat - the strengthening of democratic control and the strengthening of citizens' rights, the reticence we feel in principle about dealing under the current treaty set-up with sensitive matters that could soon be dealt with under the provisions of the new treaty. This reticence in principle is very real. It runs deep, and it is widely shared by the different political groups represented both in the Committee on Civil Liberties, Justice and Home Affairs and in the more general setting of our assembly. However deep it runs, this reticence is also, at least at present, quite measured. We are not motivated, Mr President, President of the Council, Commissioner, by the perverse intention of delaying taking action on important matters that have reached maturity and the urgency of which is not in doubt. On the contrary, we are willing to try to reach a kind of gentlemen's agreement, through genuine dialogue, that would give each of our institutions the safeguards and guarantees it believes necessary. In our view, it should be possible to come to an agreement very quickly on some kind of interinstitutional legislative programme for 2008 and the first half of 2009, which would contain a limited number of common priorities in sensitive matters, would come with mutual commitments, and would enable us to benefit from the positive provisions of the new treaty, without bringing them in early. Parliament already indicated a possible method of responding to this request during the vote held at the last plenary in Strasbourg on modifying the Staff Regulations and missions of Europol. Indeed, President of the Council, Commissioner, it was by an overwhelming majority of 537 votes that Parliament adopted an amendment stipulating that this decision would be revised within six months of the date of entry into force of the Treaty of Lisbon. Of course, even though it was adopted by an overwhelming majority, this unilateral amendment is not binding. However, as you will have understood, it is a very clear manifestation of our political will to open up a discussion and find solutions. It is in this spirit that our committee confirms both its determination and its availability for a genuine interinstitutional dialogue. President-in-Office. - (SL) I am happy to be here with you today and to take part in such an important debate. The implementation of policies in the field of justice and internal affairs is of extreme importance for our citizens. With the development of our society and modern technologies, the question of security has become one of the most important issues for our citizens. I think that we, as representatives of the Council, the Commission and Parliament, have the same aims: to secure conditions for cooperation between Member States which will offer our citizens an appropriate level of security. Two years ago we began debating two items of legislation which were intended to enable a giant leap in the quality of our cooperation. The first was a decision to establish Europol as a European agency, and the other was to incorporate the Treaty of Prüm into European legislation. In accordance with the new legal basis, Europol will be able to respond more rapidly to changing trends in terrorism and organised crime and it will further improve its analytical capacity and ability to support the Member States. This will substantially help in a more effective struggle against the organised crime and terrorist organisations which are active in several States of the European Union. The incorporation of the Treaty of Prüm will enable a faster exchange of DNA, fingerprint and vehicle registration data from national databases. The two previous Presidencies, Germany and Portugal, have done everything to assist the adoption of both items of legislation by the end of our three Presidencies. In accordance with the programme which I presented to your colleagues in the Committee on Civil Liberties, Justice and Home Affairs, we are planning to reach a consensus on both items by June of this year. In view of their importance, a delay in adopting them would not be justified, especially as we have already approved them and harmonised them among the Member States and among all three institutions to this current level. As for the legislation still awaiting debate, the Presidency is willing to cooperate closely with Parliament on a case-by-case basis and in the spirit of joint responsibility for their adoption. Both institutions will thereby share responsibility for the security of EU citizens and in other areas. The Council is currently discussing proposals for legislation of general application to do with combating all forms of organised crime and terrorism. This mainly concerns data gathering and exchange procedures and also applies to cooperation within Europol. We are also discussing legislation relating to specific problems and specific criminal activities. In addition to the proposal to incorporate the Treaty of Prüm and the decision on Europol, we are currently building on the measures for preventing undesirable persons from entering the territory of the European Union. I am personally involved in the efforts to accelerate the development of the second generation of the Schengen information system. We are preparing to accelerate the adoption of legislation that will make it easier to use the visa information system. In external affairs, we are working hard with the countries of the western Balkans and Russia to prepare regional assessments of threats from organised crime. This month the Council started to debate the first of two proposals for directives on legal immigration. After the first meeting of working groups, where the debate concerned highly qualified workers, the Presidency felt that there was a wide consensus on the application of the directive. We hope that further debate will identify the key political issues by the end of our Presidency, and we will then hand the dossier on to the French Presidency so that work can continue effectively. For two years now, Parliament and the Council have been debating the proposal for a directive on the return of third country citizens who are living illegally in the European Union. The debate is focused on several specific issues on which the institutions have very different opinions. The Presidency will continue to do its utmost to reach an agreement with Parliament that will enable the directive to be adopted as soon as possible, preferably at first reading. However, we must be careful that this directive does not make the return procedures worse and thus reduce the effectiveness of our policies in the fight against illegal migration. In deepening this dialogue with the countries of origin and transit, the Council will continue to strive for the ongoing implementation of global approaches to problems of migration, emphasising that they have to be included and that there has to be a geographic balance. Our attention will thus be focused on north Africa and south-eastern Europe. Mr President, ladies and gentlemen, I welcome the President of the Council and thank the Chairman of the Committee, Mr Deprez, for his introduction. Clearly today we are not just discussing an assessment of the results for 2007, which in our particular area have been positive, in my opinion: we have opened up internal borders to more than 400 million EU citizens with Schengen enlargement; we have created and implemented the Fundamental Rights Agency; we have reached a very important agreement with Parliament on the Visa Information System; we have worked on immigration, as the Slovenian Minister Mr Mate mentioned, and on terrorism. Just to give a statistic, in 2007 the proposals that fell within my remit and that I presented to you constituted almost 20% of all the strategic initiatives of the European Commission, which means that this area has been and continues to be of truly vast importance. We have achieved everything that was in the strategic programme. Today, in 2008, we are facing a challenge every bit as important. As you know, the Commission identified 26 strategic proposals for 2008, and eight of these, so almost 30%, concern the area of freedom, security and justice. This year we will deal with external borders: there will be a package of proposals in February to strengthen security at our external borders, along the same lines and using the same criteria as for the Schengen and visa information systems; we will carry out a comprehensive assessment of Frontex, which will enable everyone to learn lessons for the future too; we will, I hope, make some progressive and ambitious proposals on civil justice; we are discussing with the Slovenian Presidency what is known as e-justice, or how to give citizens better access to civil and criminal justice through the use of the latest technologies. Of course we will continue to deal with immigration. The initiatives of last year, on which a broad political consensus was reached, will be dealt with and developed during this year. This year there will be the action plan on asylum, asylum seekers and the European system for the treatment of refugees; in July and November we will have the two comprehensive proposals. We will be proposing a European strategy for the prevention of violent radicalisation, one of the key factors of a political strategy to fight terrorism; this will happen in June. However, I think the political issue raised by Mr Deprez deserves a political response, which I will happily give. 2008 is a year of transition. It is a year of transition to the Treaty of Lisbon and its ratification, with a view to its entry into force - which we would all like - in January 2009. Then it is clear that the three requirements, on the one hand to work together with Parliament to assist this transition, and on the other not to slow down initiatives that are ready for action and on which there is consensus, and at the same time not to anticipate what the Treaty of Lisbon will say or do when it comes into force, must all be kept in mind. So I believe that an interinstitutional political agreement will be necessary. Clearly, this can be reached only if the Council, Commission and Parliament agree on the working method, even before agreeing on the specific priorities. If there is political agreement on the working method, we can define common priorities together, and the priorities should be initiatives that have an immediate added value for citizens, that attract sufficient consensus, and that achieve the balance we want between the interests at play: security, safeguarding the security of citizens, and also promoting and protecting civil liberties - the usual political balancing act that is the challenge facing all of us. I believe that the best working method is the one we have begun to explore with the Council: not working in six-month periods, but bringing together the trio of Presidencies, which the current and previous Presidencies have done, to look at initiatives over an eighteen-month period rather than a six-month period, because it is clearly the case that if we work only with initiatives over a limited timescale, we do not have the vision that should carry us - I believe - reasonably, at least to June 2009, because the date of the European Parliament elections is, in my opinion, the only real deadline we should be looking at. So I am prepared to do this, I am prepared for a political dialogue with the Council and with Parliament to identify those things we can offer our citizens as an immediate response from among the 2008 and 2009 priorities, and those that deserve to be looked into in more detail. This is how I believe we will demonstrate, without prejudice to the Treaty, that when the institutions work together they get there more quickly and with better political results. This is the path I think we could all follow together. on behalf of the PPE-DE Group. - (DE) Mr President, President-in-Office of the Council, Commissioner, ladies and gentlemen, today's debate concerns European internal policy and I believe it is right to do what the Vice-President of the Commission, Mr Frattini, has already done, and that is to take a brief look back. 2007 was a great year for European internal policy. The opening up of the Schengen area has been a great success and we are also able to confirm to our citizens that if all the investigative authorities in Europe have access to one database system, this will not reduce security, but increase it. Nevertheless, we must also look to the future, of course. I read here that the SIS II was debated at the informal Council meeting in Slovenia under the Slovenian Presidency. As I understand it, the central system is now once again being shelved. Sections of the Commission appear to be ready, but now a new political group of specialised interior ministers is being set up to deal with the SIS II. Their aim as regards SIS II is to make real practical progress in combating organised crime and crime in Europe. Therefore, why do we have to delay any further here? I am concerned that after enlargement we are falling into a black hole because everyone is satisfied that enlargement has turned out well. I should like to point out that we in Parliament carried out an evaluation of the systems after six months and will also insist on doing so. A second practical subject area in which I would ask for action to be taken is the issue of police cooperation. As you know, unfortunately not all sections of the Prüm Treaty have been incorporated into Community law, but in particular essential issues of police cooperation were not adopted. Further progress therefore needs to be made here too. We are awaiting proposals from the Commission regarding border protection. I am looking forward to proposals regarding the entry and exit systems because it will be very interesting to find out how many overstayers we have in Europe. One final point: we are to have a new treaty. I should therefore like to encourage our Committee Chairman, Mr Deprez. We shall gain the citizens' confidence in this treaty if we haul the decisions in force in the internal policy sector out from the back rooms of the Council and bring them into the bright light of this plenary sitting. Here people will see how decisions are made. Therefore, please accept Parliament's outstretched hand. We are ready to cooperate. on behalf of the PSE Group. - (IT) Mr President, President of the Council, Vice-President of the Commission, ladies and gentlemen, I believe I can share Commissioner Frattini's approach to the debate. We need to look to the future, we need to understand how we can manage the time left to us with a sense of responsibility and commitment shared by all the European institutions. We believe that after years of debate on the area of freedom, security and justice, in which this Parliament has been critical of the clear democratic deficit - such a tricky area for the fundamental rights of citizens - we can welcome the signature of the new treaty, which finally creates a European dimension in this area, and which gives Parliament full legislative powers, including on judicial, criminal and police cooperation and on entry and residence policies. For this reason, my group also believes that, even during the delicate phase of ratification, no institution can escape the fact that the framework has completely changed. We know it is not possible simply to bring forward the entry into force of the Treaty, but we believe it would be a mistake politically to carry on working on highly sensitive dossiers in a way that sidesteps the democratic scope of the Treaty of Lisbon. For this reason, our group also believes that a joint commitment from Parliament, the Council and the Commission is necessary to identify any dossiers of particular importance, not to block their passage but to guarantee that Parliament can be consulted with the entry into force of the Treaty of Lisbon and to integrate them into the new institutional framework. I am thinking in particular of the important dossiers on which until now we have merely been consulted, such as the proposal for a European PNR system, the proposal to revise the framework decision on terrorism, the directive on the admission of highly qualified workers and the directive on a uniform procedure for the admission of labour migrants. May I take a few seconds, Mr President, to express concern over what the Council was saying about the Returns Directive. We appreciate the Council's availability and cooperation, but we believe that there are a few extremely delicate points. One in particular is that 18 months' detention is not considered an improvement in the effectiveness of this directive, but an oppressive measure on which a good many in this Parliament will continue to express their displeasure. on behalf of the ALDE Group. - Mr President, we are looking at the progress that the European Union has made towards becoming this area of freedom, security and justice. This means a development towards a Europe in which both civil rights are upheld and complex issues of law enforcement, such as terrorism and transnational crime, are addressed. But, unfortunately, what we have had in the last 10 years is a failure to strike the right balance between security, freedom and justice, and actually rather a narrow definition of security. Law enforcement needs to be better targeted and civil liberties need an upgrade. For instance, the failure - in 10 years - to agree on a measure upholding minimum rights for suspects and defendants is a real hole in the record. Advocate-General Maduro, in an opinion on terrorist blacklists - quoting, I think, from the Israeli Supreme Court - said, 'It is when the cannons roar that we especially need the laws. There are no black holes. The war against terrorism is also law's war against those who rise up against it.' It is a pity that the Council of Member States did not bear that in mind in considering our report from the Temporary Committee on Extraordinary Rendition. We have had no substantive response to that report. I agree with Commissioner Frattini that we need an agreement between the Commission, Council and Parliament about the way forward in the transition from the unsatisfactory intergovernmental procedures in criminal justice to normal Community decision-making. This is going to take a change of culture and attitude as well as procedures. Some of the third-pillar measures in the pipeline, like Prüm, data protection, EU P&R, are of low-quality in terms of both democratic scrutiny and civil liberties safeguards. A lot of confidence is being invested in technological projects, either of exchange of data between Member States or of construction of new EU databases. I am all in favour of appropriate data sharing, but I caution against over-reliance on technological quick fixes. Do not let us forget traditional, intelligence-led policing; even if it is more difficult in making it work across borders, it should not be relegated to a secondary effort in the light of the dazzling allure of databases, because this raises big questions of data protection and data security. I have asked Commissioner Frattini to consider doing a green paper on whether our regime of data security is adequate, particularly in the light of the scandalous losses of data in the UK. He has declined so far. I hope he might reconsider. Also, can he consider the need for that in the light of the route of profiling that we are going down? Commissioner Frattini does not acknowledge this, but the UK Government does quite openly say, 'we are doing profiling'. Let us have a debate about what safeguards we need. Finally, on the UK opt-out, I think colleagues in Parliament might appreciate - and certainly I, as a British MEP would - having some idea what the UK strategy will be in the use of the opt-ins and opt-outs, because I think that would be quite helpful in making clear that the UK intends to engage positively in justice and home affairs in the years to come. on behalf of the UEN Group. - (GA) Mr President, the Irish Government is playing an active, central role in Europe in the fight against international organised crime. Irish police forces are making their contribution through the European Police Office - Europol. With a population of 500 million, in what are now 27 countries, it is vital that international borders should serve as a protection against the illicit activities of criminals. To enable this to happen, there has to be solidly based intensive cooperation among police, customs, naval, and intelligence services, encompassing all of the Member States. I should like to stress that the Lisbon Reform Treaty will in no way affect Irish neutrality. Ireland is a neutral country, and Irish troops cannot be deployed overseas unless an appropriate resolution has been adopted in the UN and the necessary consent has been obtained - after a vote in the Dáil Éireann - from the Irish Government. on behalf of the Verts/ALE Group. - Mr President, my group would agree with much of what has been said, particularly the emphasis on the need for the protection of fundamental rights as a core basis of many of the decisions we would like to see taken in the remaining period of this Parliament. My group would also agree that an interinstitutional agreement would be useful to avoid the sort of arbitrary use of codecision that we have seen on occasion, that sort of arbitrary use at the behest of the Council when many of us felt, because things could not be got through by unanimity, Parliament was being used as a sort of alibi. We would rather see these sort of arrangements set within a proper framework - and within something that is not going to delay for five years much of the progress that we want to see happen. In terms of the issues about fundamental rights, we are deeply concerned that one of the issues which does not seem to have been resolved in the Council is the question of procedural safeguards. Many in this Parliament agreed to the introduction of the European arrest warrant, believing that procedural safeguards would soon follow. Others who were obviously more sceptical said we wanted to see the safeguards first and then we would look at greater cooperation between Member States. So we would like to know, please, when we can expect these measures, which are deeply important to all of our citizens. We also share the concern voiced this morning on questions about data protection. There are growing concerns about the lack of transparency and, certainly, growing public concern about the way in which data is being used and exchanged without any clear information to the public as to what exactly is happening. I was slightly concerned, to put it mildly, to hear the Council talk about the issues of the Returns Directive, saying that some Member States do not want return to become more difficult. Some of us might believe that what this means is that the Council does not want to see a safe, secure and open procedure put in place that guarantees the rights of individuals rather than simply, as in the case of some Member States, trying to meet targets through return. We do not want return necessarily to become more difficult. We want it to become a more open procedure which safeguards rights. One of the issues with which we have concern, for example, is the use by some Member States of an automatic re-entry ban. We also share the concerns on length of detention. I welcome the statement that was made about the proposal on highly-qualified migrants. At last we may see a positive measure on an immigration policy, a move away from what some of us see as a policy of deterrents that the Union has been following for some time. At last we will get an agreement on something more positive and more open, even if it is only affects a small part of those people coming to the European Union. But I would welcome a comment, please, on what is happening on the sanctions against employers. Lastly, I would also like an answer to the question posed to both the Council and Commission on the comment about the UK's position on treaty reform. on behalf of the GUE/NGL Group. - (IT) Mr President, ladies and gentlemen, I much appreciated the willingness of the Commission and also of the Council to reach an interinstitutional political agreement quickly in view of the new transitions we will be experiencing in the next few months. From January 2009 this Parliament will be able to play an important role in freedom, security and justice, particularly in terms of the need for European citizens to be able to exercise democratic control over the choices being made within the area of freedom, security and justice in the European Union. We think that 2008 will be a year of transition, and therefore a number of priorities in terms of freedom, security and justice must be identified in the course of it. I think we need to go forward with matters on which we cannot turn back, matters we need to insist on. I am thinking about the need to introduce a common asylum policy for 2010 and the need to speed up the process that could lead to defining this common policy; I am also thinking of the need to come up quickly with a general plan for legal immigration, not just to encourage the admission of qualified or highly qualified immigrants, but to prepare a plan that covers all admissions to the European Union; I believe that we also need to focus on the freedom of circulation of men and women within the Schengen area, profiting from the results achieved in 2007, and to try to capitalise on these aspects. I believe we also ought to try during 2008 to assess some of the choices that have already been made. In particular I am thinking about two important questions. I think that a genuine assessment must be made of the usefulness and effectiveness of Frontex. It seems to me that an objective assessment could quietly bring us to admit that it has not produced the effects that the vast majority of this Parliament and Europe's citizens had hoped for. In the same way, I think that an assessment must be made of the enormous quantity of databases at our disposal. All too often, the exchanges of information are not of any value and sometimes the information is lost. To conclude, Mr President, I think that we should probably also make a final assessment of the Returns Directive. It appears that we have now reached the point of no return, and we probably need to change our strategy: to come up with an action plan and a plan for legal immigration, and then we will know how to kick out, expel and detain immigrants. on behalf of the IND/DEM Group. - (NL) Mr President, President-in-Office of the Council, Commissioner, ladies and gentlemen, the questions to the Council call for particular attention to developments with regard to Frontex. I have drawn attention to this issue repeatedly in the past. This debate is therefore a good opportunity to raise our concern about Frontex once more. I concur with Mr Catania's words in this regard. Several national parliaments have urged the governments of the Member States to provide manpower and material for Frontex's activities. Obviously, the Member States are not exactly champing at the bit to participate in operational activities, and I am therefore pleased that the Netherlands has finally agreed to deploy a frigate. Hence my question: what will happen with the boat people and migrants after they are picked up? Can the President-in-Office tell us how people intercepted in boats at sea will be dealt with? We receive regular reports of the interception of boatloads of migrants; as a rule, these people are first brought to shore and taken care of. Is it the Member State in command of the navy vessel who is obliged to grant asylum or take care of the reception of the intercepted boat people? From the reaction of the Dutch State Secretary for Justice this week it can be deduced that there is still no definite answer to this question. I should like greater clarification in this regard, as it is not right, of course, that Member States who provide material and manpower should have to bear the full burden. President-in-Office, if you are unable to give us an answer to this question during this debate, will you do so in writing? I now have another question for Commissioner Frattini. It is easy for ministers of justice to promise to provide navy vessels, for example; but implementation is in the hands of the defence ministers, who are often lucky even to be informed of the promises made by ministers of justice. Clearly, this gives rise to major coordination problems. My question to Commissioner Frattini is this: what do you intend to do to avoid this kind of problem in future? After all, it has taken a very long time for the promises made so long ago to show the beginnings of the slightest effect. (NL) Mr President, quite rightly, the need for all manner of measures to increase the security of our citizens is extensively debated in this Hemicycle. Frontex springs to mind in this regard. However, let us not bury our heads in the sand, as Europe itself has become much less secure precisely because of the open border policy that has been pursued. The fact is that this policy has tangibly strengthened the power of internationally organised crime without putting adequate measures in place to combat it. That is not all. European citizens have also fallen victim to waves of legalisation on the status of illegal immigrants that certain countries have decided to carry out. This will certainly not reduce the disgraceful trafficking in human beings. The area of security we are discussing here is, however regrettably, to some extent also an area in which criminals - particularly Islamic extremists - are given free rein. The essential State competences in this field are all being increasingly eroded - competence with regard to legal immigration, for example. This is unacceptable. The Member States must retain total and unconditional control of their own labour markets, and there must be absolutely no restrictions imposed on the way in which they conduct their labour market policy. (ES) Mr President, I think Mr Deprez has correctly identified the problem and Vice-President Frattini has provided the solution to that problem. Strictly speaking we are facing a year of transition, but during that year of transition, to which we need to add six more months up to the end of the parliamentary term, we have some mature decisions to make that we cannot neglect. This is why I think that the interinstitutional agreement is absolutely essential in order to be able to harmonise mature initiatives with the much needed and much desired codecision. Therefore, Mr President, I think that the importance of initiatives such as those within the framework of the Area of Freedom, Security and Justice - let us bear in mind that, of the Commission's 26 strategic proposals, a third come under the Area of Freedom, Security and Justice - gives us a huge responsibility when dealing with the draft legislation that we have under way. This is why the much called for evaluation of the European Agency for the Management of Operational Cooperation at the External Borders deserves all our attention, as do all issues relating to migratory phenomena, concerning both legal and illegal immigration. Civil and criminal justice to provide better services for citizens, Europol, a revised European Agency in the new framework of the Constitutional Treaty - not forgetting, Mr President, data protection in the third pillar - all of this merits the Area of Freedom, Security and Justice being harmonised in terms of both methods and time. - (EL) Mr President, the Internet is the new battlefield. According to the Commission and the Council, it is a battlefield for combating terrorism, and we do not argue with this. For many of us, however, the Internet is also a battlefield for the protection of citizens' fundamental rights. Of course, as we well know, the Internet is used by terrorists, but it is also used by millions of innocent citizens for discussion. What they discuss also happens to be terrorism which, without justifying it, they are trying to understand: something we do all too rarely here, unfortunately. So, notwithstanding the importance of a legislative initiative against the circulation of pro-terrorist propaganda on the Internet, this is also a highly sensitive issue. Commissioner, President-in-Office of the Council, I have to tell you that this legislative initiative in its present form is somewhat problematic. It does not require that a person spreading pro-terrorist propaganda do so intentionally and... 'and' that propaganda be likely to lead to a terrorist act. Instead of 'and', your text reads 'or'. In other words, should a member of the public try to make sense of terrorism that is being committed somewhere in the world, they risk ending up in trouble simply because 'somebody' believes that their words have led to an act of terrorism: that member of the public is accused, even though they have no intention of causing such an act. This is something you must correct. I should also ask you to explain whether the contents of our e-mails will be checked. Who will check them to enable the police to judge whether this new law that you are promoting has been violated? Let me remind you that in the case of data retention of telephone calls, you have repeatedly reassured us that the contents of our SMS messages and phone calls will not be monitored. Will the contents of our e-mails here be monitored as a result of the measure you are promoting? Another point I wish to emphasise is the European PNR system initiative. My friends, we do not need it. At least, you have not explained to us why we should need it. We have the APIS; we have, as Mr Frattini has quite rightly pointed out, the VIS, a successful outcome of our agreement; and we have Schengen: so we know very well who is travelling where in the world today, and who is coming to Europe. Furthermore, of the 27 countries in Europe, only 3 currently have measures in place for the possible implementation of PNR. Where is the pressure to harmonise PNR legislation now? Why are you promoting this measure so fanatically, even though the European data protectors have disagreed with it? Why do you not sit down and discuss it with Parliament, with people who are set on fighting terrorism, but who might be just as concerned about protecting rights - if not more concerned, as we are sometimes accused of being? - (DE) Mr President, what can be affirmed is the fact that not only do the Council and the Commission place greater emphasis on the term 'security' in their documents, but they also appear to have become increasingly aware of citizens' basic freedoms and rights. We in Europe, however, can do as much work as we want on the common area of freedom, security and law when third countries' legal systems are apparently impeding us in this exercise. I believe that the Commission, and specifically the Member States too, should be increasingly monitoring the extent to which the US legal system, for example, is impacting on the households of European citizens. The Commission and the Council will find themselves faced with a question from me and some of my colleagues, asking how it is possible that mail transfer data from the United States, which to all intents and purposes should be used only for customs purposes, is being passed on to the security authorities. The confidentiality of mail is one of the last bastions we have so far been able to protect. I hope that the Commission in cooperation with the Council will be able to resolve the problem of a global approach to combating terrorism and organised crime not only from the security aspect, but also from the aspect of freedom, protection of citizens and elimination of the problems of conflicting legal systems. (IT) Mr President, ladies and gentlemen, the deputy chief editor of Corriere della Sera, Magdi Allam, who could hardly be accused of racism or Islamophobia, has raised a serious issue: the imams and all the requirements of the large mosque in Rome - funding and pay - are supported by the embassies of a number of Islamic countries. Does this provide security in Europe, in one of its major capitals, against the genuine risk of the spread of extremist Islamic doctrines? I do not think so. Rather, I believe that there should be control of the spread of fundamentalist Islamic ideas closely linked to terrorism and that this is what the European Union should be looking at very carefully. Terrorism: what do we make of the recent opinion of Advocate General of the European Court of Justice Poiares Maduro, which suggests that Regulation (EC) No 881/2002 on freezing the assets of those on the blacklist of members of Al-Qaida and the Taliban is unlawful? I would like to restate the fact that this Regulation is nothing more than the application of UN Resolution 1390, adopted by the whole international community in response to the attacks of 11 September. The civilised world wants to defend itself against the risk of terrorism: never drop your guard against the deadly threat of Islamic terrorism! (CS) Ladies and gentlemen, I believe that we have not made any considerable progress in the matters of freedom, security and law. On the contrary: the governments are not allowing their citizens to have their say on the Lisbon Treaty through referenda and we are therefore moving away from freedom. Why are citizens not free to decide whether they want their country's participation in EU decision-making to diminish? Why are citizens not free to decide whether they want to see an end to their governments' vetoes in the areas of migration, energy and transport, as well as control over the European Central Bank? Why do citizens of the Member States, especially the smaller ones, not know that it is going to be practically out of the question for them to hold the rotating presidency of the European Council? Indeed, has anyone told them that in six years' time their country will lose its automatic right to have a Commissioner in the European Commission? The Reform Treaty changes the pivotal European Union documents in a fundamental way. If it is adopted just by parliaments, without referenda and nation-wide discussions, instead of freedom there will be unrestrained arrogance of the powers that be. The European Commission should remind the governments of this. (SL) Firstly, I would like to thank you for the very good presentations on this fairly complicated issue we are discussing today. I would like to use this opportunity to draw attention to another field which we have not yet dealt with sufficiently clearly. I am talking about the external borders of the European Union. All the Member States which are now in charge of the new external borders of the European Union have invested great efforts in securing these borders properly in order to protect them and ensure that the infrastructure is suitable and facilitates implementation of the Schengen standards. However, we have at the same time found that life at the border has deteriorated. I would like to draw your attention to the reduced quality of life of people at the border, especially in less developed regions, and I would like to ask whether the Council and the Commission are planning any special additional measures to improve the quality of life in border regions so as to prevent people deserting these areas. We are all very aware that if people leave border areas, i.e. if they are uninhabited spaces, they are also difficult to protect. My second question is: At the committee meeting, the Council President mentioned that cooperation with the Balkan countries is also one of the important tasks on which the Council is focusing. In this context I am especially interested to know whether implementing the Schengen standards and securing our safety will hinder cooperation between our police forces and the police forces within the Balkan countries. (FR) Mr President, we are at a turning point for the European Parliament in the setting up of a genuine area of freedom, security and justice, and the adoption of the Treaty of Lisbon allows us to strengthen democratic and jurisdictional control. Obviously I wish to support the requests of my fellow Members to come up with a list of priorities we can work on using an early codecision procedure, on the basis of an interinstitutional political agreement. Indeed, the full participation of the European Parliament can only improve the quality of decisions, and sometimes, as we have already seen, enable an agreement to be reached at all. Obviously this cannot happen without the national parliaments being involved in this debate, and I propose that we also bring forward the strengthened role conferred upon them by the new treaty. Another of our priorities, of course, should be data protection. It will be no surprise to you that I am coming back to this. Indeed, you know that we encouraged the adoption of the framework decision on data protection in the third pillar. Naturally, we are pleased that the European Parliament is being consulted again on the subject. However, we are extremely concerned about the mediocre results achieved in the Council on this text, precisely because of the unanimity rule. Given that the pillars will soon be eliminated, and to ensure true protection of the private lives of our fellow citizens, do you not think that a solution would be to modify the existing directives on data protection so that they also apply to police and judicial cooperation? It is particularly important to ensure a high level of data protection because this must also govern the proposal to establish a European PNR. This is an important question I am putting to you and I would really like an answer. (NL) Mr President, first of all, I should like full transparency from the Commission and the Council regarding the ongoing negotiations with the United States on a transatlantic data protection scheme. It seems that now - at the end of the negotiation process - the Commission is going to ask the Council for a mandate. This is the wrong way round. Secondly, the PNR dossier is starting to turn into a shambles. The need for the whole programme is far from well established. The legal basis is unclear. There is still no system for the protection of personal data in the third pillar. Yet it would seem that this has not stopped the home affairs ministers from deciding on a European PNR programme. Moreover, the European Parliament's representative, Mr Deprez, was not invited. I should like to understand how it can be that the German Minister of Justice has at the same time declared that a European PNR programme would be contrary to the German Basic Law. In my opinion, this dossier is far from ready; the European Parliament would first like to hear why this programme is necessary. - (PL) Mr President, the most important event of 2007 in the area of freedom, security and justice was clearly the enlargement of the Schengen area. Today we can say that expectations of easier movement across borders have suffered a brutal collision with reality. Movement across the Polish-German border between Saxony and Lower Silesia is now problematic because of the enlargement of the Schengen area. People are being accused at random of smuggling illegal emigrants and are being held by the police for hours on end like ordinary criminals. Such accusations are being levelled at taxi drivers in the border area. In violation of the law, they are being told to check passengers' documents. Vehicles with a Polish registration plate are being subjected to checks lasting several hours. The Schengen Agreement is being introduced on the Polish-German border in a way that discourages people from crossing the border. This is not in line with the aim of that agreement and demands urgent action by the European Commission. (RO) The efforts of the Commission and the Council to ensure the free movement of persons across Europe came to fruition in December 2007 with the extension of the Schengen area. In the field of illegal migration, the draft legislation on common standards for the repatriation of illegal immigrants from third countries and the sanctioning of illegal migrant employers are sure to help reduce this phenomenon. Concerning legal migration, the Commission has initiated legal measures by submitting to Parliament the draft legislation on conditions for entry and residence for highly skilled workers and the single permit procedure for third-country nationals. I would like to draw attention to a topic that I believe to be of utmost importance: transitory measures are still in force, imposed by some Member States in order to limit the movement of the labour force from other European Union Member States. It is all very well to promote a single policy to deal with legal immigration from third countries, but it is not normal to impose restrictions on EU nationals. We cannot speak about a space of freedom if there are restrictions on the freedom of movement of the work force. In my opinion, it is obvious that the directives on legal migration from third countries should be enforced, while at the same time lifting the restrictions applied to some Member States. This can be done gradually by asking Member States that apply the legal migration Directive to repeal any labour restrictions that apply to nationals of other Member States referred to by the Directive. Moreover, the concept of preference should be applied, so that European nationals would take precedence in meeting labour market demands. Moreover, I believe a further distinction should be drawn between third countries, where nationals of neighbouring countries, especially of those countries included in the neighbourhood policy, would have priority. I hope that the discussion between Mr Frattini and Mr Deprez that opened our debate, will lead to actual results and a positive activity on our part. - (PL) Mr President, the birth of the Lisbon Treaty and the reform of the European Union are bringing about significant changes in the area of freedom, security and justice, although these were expected by EU citizens. In particular, the subjection of this area to the competence of the European Court of Justice requires good preparation on the part of both countries and EU institutions. Parliament is aware of this and is preparing itself for the new tasks, and especially for taking the majority of decisions jointly. In this context I would like to ask the Council: are we to begin work on a common list of priorities in the area of freedom, security and justice, and if so, when? I know that both the Council and the Commission have programmes. Parliament, through my committee, the Committee on Civil Liberties, Justice and Home Affairs, also knows what needs to be done. However, we need common, effective and transparent action, and a common list of priorities for the benefit of our citizens. I would also like to take this opportunity to thank the Portuguese Presidency for enlarging the Schengen area, and at the same time appeal for a regular evaluation of the functioning of this system. Just a few weeks in, we can already see some incidental negative consequences alongside the excellent advantages. These include the prohibitive cost of visas for citizens of third countries, particularly for Belarusians. The cost of a visa - 60 euros - is an obstacle and makes it impossible for them to visit their EU neighbours; it also makes it difficult for us to carry out our neighbourhood policy, which is after all enshrined in the Reform Treaty. Commissioner, this requires more than just monitoring; ladies and gentlemen, this must be changed. (ES) Mr President, I would like to focus on something that may seem minor, but which has become seriously worse during 2007 and affects millions of people: security in European airports. The European Commission and the Council have allowed and are allowing terrorism prevention in airports to be managed as if it were a transport policy. Freedoms are being limited and rights restricted through procedures designed for the logistical and technical standards for aeroplanes and trains. As a result citizens are being left with no protection against abuse and limitations of rights are being approved with no assessment of proportionality or evaluation of effectiveness. Men and women are being treated, at times, like livestock at the checkpoints by security officers who do not know the rules they are applying or the exceptions to those rules, because the rules have been declared secret. I ask the Commission - and Mr Frattini in particular - to re-establish their authority in this area; and I ask the Council to examine it seriously. We have turned airports into areas in a state of emergency where neither the law nor the most basic guarantees apply, but rather police authority with no type of control. (FR) Mr President, I would like to mention three matters that are particularly close to my heart. The first concerns the way we are going to deal with the phase leading up to the entry into force of the Treaty of Lisbon. Like all my colleagues on the Committee on Civil Liberties, Justice and Home Affairs, I would like us to reach an interinstitutional agreement on bringing forward the new provisions applicable to our area of competence. Indeed, this seems to me to be the sine qua non for an effective and transparent collaboration. The new rules on the role of the national parliaments should also be tried out this year. As rapporteur on the Framework Decision on combating terrorism, I made a commitment to cooperate in a close and structured manner with the national parliaments. On the subject of terrorism, an overview of the various texts already adopted would provide a better picture of their respective scope and how they relate to one another. Furthermore, whilst the fight against terrorism has to be a priority for the European Union, so must the protection of fundamental freedoms. I will therefore be extremely vigilant, when working on the framework decision, regarding the clarity of the definitions and terms used, to rule out any potential risk of infringing these freedoms, particularly freedom of expression. Finally, I would like to say a few words about our future action on immigration. The EU has for a long time been mainly concerned with equipping itself with a veritable arsenal of laws to fight illegal immigration, though this protective attitude towards its borders has not been counterbalanced by a policy on legal immigration worthy of the name. I am therefore delighted with the initiatives adopted over the last few years in this area, and I hope that the political will to support a welcoming Europe will be as strong as it was to defend fortress Europe. We are now going into the practice that the English call 'catch the eye'. In any case, as I am also Vice-President responsible for multilingualism, I am going to try to talk to the interpreters, my friends the interpreters, to see how the term 'catch the eye' can be translated into other languages. For now we will say that whoever wishes to speak may do so, if the President gives them speaking time by 'catch the eye'. By 'catch the eye', then, I grant speaking time to Mr Cavada, who I am sure has much to say to us on this subject. (FR) Mr President, I would first beg you to excuse this disruption to the agenda, or more precisely to the order of precedence. A train breakdown between Paris and Brussels nearly took me out of Europe, but it has been put right now, thank you. Every year, we debate the progress that has been made on building the area of freedom, security and justice. Today, however, this debate is of particular importance and that is why I want to present the reasons that led the Committee on Civil Liberties, Justice and Home Affairs to table these two oral questions, to the Council and the Commission respectively, and to press the representatives of these institutions to provide clear answers to the questions we are asking. If this debate is important, it is because with the signing of the Treaty of Lisbon last December and its entry into force planned for 1 January 2009, the policies linked to fundamental rights and the progress made in the area of freedom, security and justice must and will undergo substantial changes, changes that Parliament - as you know, ladies and gentlemen - has been calling for incessantly for some years now. Among these, I will mention the end of the pillar structure, allowing most of the procedures in the current third pillar to be dealt with at Community level, qualified majority voting to be generalised, the jurisdiction of the Court of Justice to be extended and the role of Parliament as colegislator to be strengthened; the Charter of Fundamental Rights to be binding. To benefit fully from the potential offered by this new treaty, we need as of now to prepare a common interinstitutional strategy allowing us to draw up a list of the proposals to be negotiated politically in 2008 and officially adopted during the January 2008 - May 2009 period. To conclude, Mr President, I would like to say that a strategy of this kind would mean that, once the new treaty comes into force, we will not constantly be having to amend proposals that have just been adopted, and it will guarantee full jurisdictional control for the Court of Justice and the full and complete involvement of Parliament in defining policies that go to the very core of citizens' rights. As for the question you asked me, I am going to catch my own eye and think about it, to help you in my modest way. President-in-Office. - (SL) Thank you for the questions you have asked here today. Sadly, there is not enough time to answer them all in great detail, so I will try and touch on the most important ones. I will first address Mr Weber's question relating to the SIS II system. I would like to say very clearly that we in the Council feel that security in transferring from "SIS I for all” to the SIS II system is of the utmost importance and we cannot allow data to be lost in any way or the operation of the system to be subject to any kind of threat. That is why we decided on a gradual transfer from one system to the other, which, of course, entails development of the converter. Consequently, that will somewhat prolong the period needed to bring the SIS II system into operation. I think it is a very good decision because it will ensure data security and, of course, an improvement in the quality of the data which the new system will offer, this being the most important aspect of the SIS II system. I would further like to touch on a question posed by a number of MEPs regarding cooperation between the Council, the Commission and the European Parliament. I think it is necessary for this cooperation to be close in most cases. Naturally, we need some kind of political consensus and mutual relationship in order to establish and ensure an adequate level of security and the safety of human rights. We need a valid and balanced approach, which is where the European Parliament plays an extremely significant role, and I can hardly imagine how we could operate without this close cooperation with the Parliament. Naturally, we must be clear that the Treaty of Lisbon is still not in force. The ratification process is underway. It is a relatively sensitive process, perhaps more so in some countries than others. However, we must work and operate in a way which will not threaten the ratification process in any of the Member States of the European Union. Therefore, I think it would be wise, in this year leading to the application of the Treaty of Lisbon, to cooperate with one another and to divide the legislation we are debating into two sets. One set consists of the legislation which is nearing conclusion and on which we have Parliament's opinion, or which has been fully concluded or is in the final stages of conclusion. The other set consists of legislation which we are launching or will be launching shortly and for which we need close and regular cooperation with the Parliament. I think this is the way to find an appropriate form of cooperation to ensure adequate security and a sufficiently effective method of operation and to lay down future working practices. I would also like briefly to mention the Returns Directive and Frontex. The technical discussions and negotiations on the Returns Directive will continue during the Slovenian Presidency and we have also agreed to hold political negotiations. I hope, therefore, that we will find the necessary and appropriate political compromise. I still hope that it will be reached and we have already been in touch with the rapporteur, Mr Weber, leading me to believe that the matter is progressing well. Regarding Frontex, I would simply say that the evaluation of the Frontex work is in progress and the Presidency is planning a more detailed discussion at ministerial level during the conference at the beginning of March, when we will talk about Frontex and its future and evaluate its work so far. After that discussion we will be able to give Parliament a more detailed report. Mr President, ladies and gentlemen, I believe that this morning's debate has shown a shared willingness to work together on the part of all three institutions. Therefore, not only is the working method important, but so is the merit. So the wish expressed at the start by Mr Deprez, on which I would say there was a broad consensus including from the President of the Council, and which I personally agree with, is the right working method to use. As I said at the start, in the Council the idea of working to a timescale not limited to six months has proved a success. We should try to use it here too, because I think, from what people have said, that a number of subjects have emerged that are clearly a priority. The fact that we cannot slow down the work towards setting up SIS II - the new generation of the SIS system - is apparent to everyone. We need to go forward and, beyond the discussion of timescale, what concerns us is that the process of trialling this new system is showing it to be truly of added value for the security of our external borders. Rather than talk about delay, I would talk about the need for the Member States - something I agree with - to trial the system in depth to see how it works and could work better, before actually rolling it out. The timescales we have been discussing with the Presidency, and which we will formalise with the February Council of Ministers in a few weeks' time, are timescales that demonstrate our commitment to the added value from the new generation of SIS, something that is clearly a priority. Many people have spoken about assessing the effectiveness of security measures, particularly counter-terrorism measures. This is something Parliament asked for, which I agreed to a year ago. Today we have an exercise under way. In December, all the Member States received a detailed questionnaire about the results achieved by the counter-terrorism measures being applied. I can say, not only to Baroness Ludford but to all of you, that by mid-April I will be able to publish in full the results of this analysis for all 27 Member States. This, I believe, is another priority matter for discussion, something this Parliament has always been interested in. Some people have talked about procedural safeguards. You know that no agreement was reached on this because some Member States put insurmountable problems in the way, but now the Slovenian Presidency has raised something that I think could be dealt with as a priority: the matter of judgments in absentia. This is one of the aspects related to procedural safeguards. It is not the whole discussion, but it is an extremely important aspect: harmonising the rules on judgments in absentia - a matter I think Mrs Lambert touched on - is a matter that deserves to be dealt with as a priority in 2008. We have already mentioned the assessment of Frontex. On 13 February we will publish our first comprehensive assessment of Frontex. Clearly, the Commission document will be discussed in the Council and in Parliament, and will form the basis for action, which I would also say is a priority, in 2008: how Frontex has worked, how we can improve it, how we can encourage Member States to participate more. Terrorism was spoken of; many people mentioned it. Terrorist propaganda on the Internet and violent radicalisation are both matters that will be the subject of non-legislative initiatives. A few legislative measures are already planned, there will be communications from the Commission and it is worth debating. I much appreciated what Mrs Roure said about the European PNR. This is a discussion that will continue throughout 2008. I do not believe that we will have adopted the European PNR by the end of this year. However, I believe that three criteria - mentioned by Mrs Roure if I am not mistaken - should guide us: proportionality in the collection of these data and their added value for the fight against terrorism, because this is what we are dealing with. If this instrument works, we will adopt it, if it does not work we will adapt it or else we will not adopt it. I personally believe it will be useful, but I think we need to discuss it here. And then there is the matter of how to protect the data collected and how to punish anyone who misuses these data. These are matters for discussion, obviously open, that we can tackle during 2008. Lastly, immigration. I believe that we should now continue with the general approach to immigration, as the European Council in December said, to think, in view of the future French Presidency, about what the French Government intends to propose as a European pact on immigration, and I have already planned for the Commission to be fully available to work on this matter. Finally again, asylum policy. 2008 will be decisive, since 2010 is the deadline for setting up a European asylum system. 2008 will be the year in which the action plan will be presented to the Commission. I have given examples to show how, in this spirit, Mr Deprez's proposal, which I think should be welcomed, is to get together and define in concrete terms what can be done immediately because it is ready - and there are many things we can conclude during the Slovenian Presidency - and what we can continue to discuss between now and, say, June 2009. Mr President, I note with some surprise and regret that, first of all, the Council has not replied to any question on PNR. I wonder if it would agree here to give us written replies to all the questions that have been put here. Secondly, I note - again with regret - that for a year now we have been asking about information about the high-level contact group and the negotiations between the Commission and the Americans on data protection. Again, we have not received a reply. They have been negotiating for a year, and I think it is high time that they tell us what they are negotiating about. I would like a written reply. Thank you Mrs in 't Veld. I think that both the Commission and the Council have taken note of what you said and I am sure that they will provide written answers to the requests that you have just made. The vote will take place during the March part-session.

MAGIC LANTERN GROUP, INC. AND CERTAIN OF ITS SUBSIDIARIES MASTER SECURITY AGREEMENT     To:     Laurus Master Fund, Ltd.      c/o Ironshore Corporate Services, Ltd.      P.O. Box 1234 G.T.      Queensgate House      South Church Street Date: April 28, 2004            1.     To secure the payment of all Obligations (as hereafter defined), Magic Lantern Group, Inc., a New York corporation (the "Company"), each of the other undersigned parties (other than Laurus Master Fund, Ltd, "Laurus")) and each other entity that is required to enter into this Master Security Agreement (each an "Assignor" and, collectively, the "Assignors") hereby charges, mortgages and grants and grants to Laurus a first priority and continuing security interest in all of the following property now owned or at any time hereafter acquired by any Assignor, or in which any Assignor now have or at any time in the future may acquire any right, title or interest (the "Collateral"): all cash, cash equivalents, accounts, inventory, equipment, goods, records, documents, instruments (including, without limitation, promissory notes), contract rights, general intangibles (including, without limitation, payment intangibles and an absolute right to license on terms no less favorable than those current in effect among our affiliates, but not own intellectual property), chattel paper, supporting obligations, investment property (including, without limitation, all equity interests owned by any Assignor), letter--of--credit rights, trademarks and tradestyles in which any Assignor now have or hereafter may acquire any right, title or interest, all proceeds and products thereof (including, without limitation, proceeds of insurance) and all additions, accessions and substitutions thereto or therefore. In the event any Assignor wishes to finance the acquisition in the ordinary course of business of any hereafter acquired equipment and have obtained a commitment from a financing source to finance such equipment from an unrelated third party, Laurus agrees to release its security interest on such hereafter acquired equipment so financed by such third party financing source. Except as meaning provided such terms in the Securities Purchase Agreement referred to below.            2.     Notwithstanding anything to the contrary set forth in Section 1 above, the types of Collateral described in such Section shall not include the last day of the term of any lease or agreement to which any Assignor is a party but upon enforcement of the security interest, such Assignor shall stand possessed of such last day in trust to assign the same to any person acquiring the term of the lease or agreement therefor. The term "Obligations" as used herein shall mean and include all debts, liabilities and obligations owing by each Assignor to Laurus arising under, out of, or in connection with: (i) that certain Securities Purchase Agreement dated as of the date hereof by and between the Company and Laurus (the "Securities Purchase Agreement"), (ii) that certain Secured Convertible Note dated as of the date hereof made by the Company in favor of Laurus (the "Term Note"), (iii) that certain Warrant dated as of the date hereof made by the Company in favor of Laurus (the " Warrant"), (iv) that certain Subsidiary Guaranty dated as of the date hereof made by certain Subsidiaries of the Company, (the "Subsidiary Guaranty"), (v) that certain Registration Rights Agreement dated as of the date hereof by and between the Company and Laurus (the "Registration Rights Agreement"), (vi) this Master Security Agreement, (vii) that certain Stock Pledge Agreement dated as of the date hereof among the Company, certain subsidiaries of the Company and Laurus (the "Stock Pledge Agreement"), and (viii) that certain Escrow Agreement dated as of the date hereof among the Company, Laurus and the escrow agent referred to therein (the "Escrow Agreement") (the Securities Purchase Agreement, the Term Note, the Warrant, the Registration Rights Agreement, the Subsidiary Guaranty, this Master Security Agreement, the Stock Pledge Agreement, and the Escrow Agreement, as each may be amended, modified, restated or supplemented from time to time, are collectively referred to as the "Documents"), and in connection with any documents, instruments or agreements relating to or executed in connection with the Documents or any documents, instruments or agreements referred to therein or otherwise, and in connection with any other indebtedness, obligations or liabilities of any Assignor to Laurus, whether now existing or hereafter arising, direct or indirect, liquidated or unliquidated, absolute or contingent, due or not due and whether under, pursuant to or evidenced by a note, agreement, guaranty, instrument or otherwise, in each case, irrespective of the genuineness, validity, regularity or enforceability of such Obligations, or of any instrument evidencing any of the Obligations or of any collateral therefor or of the existence or extent of such collateral, and irrespective of the allowability, allowance or disallowance of any or all of the Obligations in any case commenced by or against any Assignor under Title 11, United States Code, the Bankruptcy and Insolvency Act (Canada), or the Companies'' Creditors Arrangement Act (Canada) (or any similar legislation), including, without limitation, obligations or indebtedness of each Assignor for post--petition interest, fees, costs and charges that would have accrued or been added to the Obligations but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in any such case.            3.     Each Assignor hereby jointly and severally represents, warrants and covenants to Laurus that:   (a) it is a corporation, partnership or limited liability company, as the case may be, validly existing, in good standing and organized under the respective laws of its jurisdiction of organization set forth on Schedule A, and each Assignor will provide Laurus thirty (30) days'' prior written notice of any change in any of its respective jurisdiction of organization;   (b) its legal name is as set forth in its respective Certificate of Incorporation or other organizational document (as applicable) as amended through the date hereof and as set forth on Schedule A, and it will provide Laurus thirty (30) days'' prior written notice of any change in its legal name; 2   (c) its organizational identification number (if applicable) is as set forth on Schedule A hereto, and it will provide Laurus thirty (30) days'' prior written notice of any change in any of its organizational identification number;   (d) it is the lawful owner of the respective Collateral and it has the sole right to grant a security interest therein and will defend the Collateral against all claims and demands of all persons and entities (other than Permitted Encumbrances (as defined below);   (e) it will keep its respective Collateral free and clear of all attachments, levies, taxes, liens, hypothecs, security interests and encumbrances of every kind and nature ("Encumbrances"), except Permitted Encumbrances. "Permitted Encumbrances" shall mean (i) Encumbrances securing the Obligations and (ii) any Encumbrance that secures indebtedness of $100,000 or less, in the aggregate, if such Encumbrance is removed or otherwise released within ten (10) days of the creation thereof; (iii) any Encumbrance that is being contested in good faith by proceedings diligently conducted that does not subject any material portion of the Collateral to a risk of forfeiture; (iv) trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) per annum of the book value of the Company''s assets whether secured or unsecured and (v) any Encumbrance in favor of Laurus ;   (f) it will, at its and the other Assignors joint and several cost and expense keep the Collateral in good state of repair (ordinary wear and tear excepted) and will not waste or destroy the same or any part thereof other than ordinary course discarding of items no longer used or useful in its or such other Assignors'' business;   (g) it will not without Laurus'' prior written consent, sell, exchange, lease or otherwise dispose of the Collateral, whether by sale, lease or otherwise, except for the sale of inventory in the ordinary course of business and for the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn--out equipment or equipment no longer necessary for its ongoing needs, having an aggregate fair market value of not more than $40,000 and only to the extent that:   (i) the proceeds of any such disposition are used to acquire replacement Collateral which is subject to Laurus'' first priority perfected security interest, or are used to repay Obligations or for working capital in the ordinary course of business ; and   (ii) following the occurrence of an Event of Default which continues to exist the proceeds of which are remitted to Laurus to be held as cash collateral for the Obligations;   (h) it will insure or cause the Collateral to be insured in Laurus'' name against loss or damage by fire, theft, burglary, pilferage, loss in transit and such other hazards as 3     Laurus shall specify in amounts and under policies by insurers acceptable to Laurus and all premiums thereon shall be paid by such Assignor and the policies delivered to Laurus. If any such Assignor fails to do so, Laurus may procure such insurance and the cost thereof shall be promptly reimbursed by the Assignors, jointly and severally, and shall constitute Obligations;   (i) it will at all reasonable times allow Laurus or Laurus'' representatives free access to and the right of inspection of the Collateral;   (j) such Assignor (jointly and severally with each other Assignor) hereby indemnifies and saves Laurus harmless from all loss, costs, damage, liability and/or expense, including reasonable attorneys'' fees, that Laurus may sustain or incur to enforce payment, performance or fulfillment of any of the Obligations and/or in the enforcement of this Master Security Agreement or in the prosecution or defense of any action or proceeding either against Laurus or any Assignor concerning any matter growing out of or in connection with this Master Security Agreement, and/or any of the Obligations and/or any of the Collateral except to the extent caused by Laurus'' own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and nonappealable decision).            4.     The occurrence of any of the following events or conditions shall constitute an "Event of Default" under this Master Security Agreement:   (a) Breach of any covenant, warranty, representation or statement made or furnished to Laurus by any Assignor or on any Assignor''s benefit was false or misleading in any material respect when made or furnished, and if subject to cure, shall not be cured for a period of fifteen (15) days from the occurrence of the breach;   (b) the loss, theft, substantial damage, destruction, sale or encumbrance to or of any of the Collateral or the making of any levy, seizure or attachment thereof or thereon except to the extent:   (i) such loss is covered by insurance proceeds which are used to replace the item or repay Laurus; or   (ii) said levy, seizure or attachment does not secure indebtedness in excess of $100,000 and such levy, seizure or attachment has not been removed or otherwise released within ten (10) days of the creation or the assertion thereof;   (c) any Assignor shall become insolvent, cease operations, dissolve, terminate our business existence, make an assignment for the benefit of creditors, suffer the appointment of a receiver, trustee, liquidator or custodian of all or any part of Assignors'' property;   (d) any proceedings under any bankruptcy or insolvency law shall be commenced by or against any Assignor and if commenced against any Assignor shall not be dismissed within sixty (60) days; 4   (e) the Company shall repudiate, purport to revoke or fail to perform any or all of its obligations under the Note (after passage of applicable cure period, if any); or   (f) an Event of Default shall have occurred under and as defined in any Document.           5.     Upon the occurrence of any Event of Default and at any time thereafter, Laurus may declare all Obligations immediately due and payable and Laurus shall have the remedies of a secured party provided in the Documents, the Uniform Commercial Code as in effect in the State of New York, and the Personal Property Security Act as in effect in each of the Province of Ontario, the province of New Brunswick and any other applicable Canadian or provincial personal property security or similar legislation and other applicable law (collectively, the "PPSA"). Upon the occurrence of any Event of Default and at any time thereafter, Laurus will have the right to take possession of the Collateral and to maintain such possession on our premises or to remove the Collateral or any part thereof to such other premises as Laurus may desire. Upon Laurus'' request, each of the Assignors shall assemble or cause the Collateral to be assembled and make it available to Laurus at a place designated by Laurus. If any notification of intended disposition of any Collateral is required by law, such notification, if mailed, shall be deemed properly and reasonably given if mailed at least ten (10) days before such disposition, postage prepaid, addressed to any Assignor either at such Assignor''s address shown herein or at any address appearing on Laurus'' records for such Assignor. Any proceeds of any disposition of any of the Collateral shall be applied by Laurus to the payment of all expenses in connection with the sale of the Collateral, including reasonable attorneys'' fees and other legal expenses and disbursements and the reasonable expense of retaking, holding, preparing for sale, selling, and the like, and any balance of such proceeds may be applied by Laurus toward the payment of the Obligations in such order of application as Laurus may elect, and each Assignor shall be liable for any deficiency.           6.     If any Assignor defaults in the performance or fulfillment of any of the terms, conditions, promises, covenants, provisions or warranties on such Assignor''s part to be performed or fulfilled under or pursuant to this Master Security Agreement, Laurus may, at its option without waiving its right to enforce this Master Security Agreement according to its terms, immediately or at any time thereafter and without notice to any Assignor, perform or fulfill the same or cause the performance or fulfillment of the same for each Assignor''s joint and several account and at each Assignor''s joint and several cost and expense, and the cost and expense thereof (including reasonable attorneys'' fees and other legal fees and expenses) shall be added to the Obligations and shall be payable on demand with interest thereon at the highest rate permitted by applicable law.           7.     Upon the occurrence and during the continuance of an Event of Default, each Assignor appoints Laurus, any of Laurus'' officers, employees or any other person or entity whom Laurus may designate as our attorney, with power to execute such documents in each of our behalf and to supply any omitted information and correct patent errors in any documents executed by any Assignor or on any Assignor''s behalf; to file financing statements against us covering the Collateral; to sign our name on public records; and to do all other things Laurus deem necessary to carry out this Master Security Agreement. Each Assignor hereby ratifies and approves all acts of the attorney and neither Laurus nor the attorney will be liable for any acts of commission or omission, nor for any error of judgment or mistake of fact or law other than gross 5 negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non--appealable decision). This power being coupled with an interest, is irrevocable so long as any Obligations remains unpaid.           8.     No delay or failure on Laurus'' part in exercising any right, privilege or option hereunder shall operate as a waiver of such or of any other right, privilege, remedy or option, and no waiver whatever shall be valid unless in writing, signed by Laurus and then only to the extent therein set forth, and no waiver by Laurus of any default shall operate as a waiver of any other default or of the same default on a future occasion. Laurus'' books and records containing entries with respect to the Obligations shall be admissible in evidence in any action or proceeding, shall be binding upon each Assignor for the purpose of establishing the items therein set forth and shall constitute prima facie proof thereof. Laurus shall have the right to enforce any one or more of the remedies available to Laurus, successively, alternately or concurrently. Each Assignor agrees to join with Laurus in executing financing statements or other instruments to the extent required by the Uniform Commercial Code in form satisfactory to Laurus and in executing such other documents or instruments as may be required or deemed necessary by Laurus for purposes of affecting or continuing Laurus'' security interest in the Collateral.           9.     Laurus may appoint, remove and reappoint any person or persons, including an employee or agent of Laurus to be a receiver (the "Receiver") which term shall include a receiver and manager of, or agent for, all or any part of the Collateral. Any such Receiver shall, as far as concerns responsibility for his acts, be deemed to be the agent of Assignors and not of Laurus, and Laurus shall not in any way be responsible for any misconduct, negligence or non--feasance of such Receiver, his employees or agents. Except as otherwise directed by Laurus, all money received by such Receiver shall be received in trust for and paid to Laurus. Such Receiver shall have all of the powers and rights of Laurus described in Sections, 6, 7, 8 and 9 of this Master Security Agreement or such other powers and rights granted in writing by Laurus to the Receiver from time to time. Laurus may, either directly or through its agents or nominees, exercise any or all powers and rights of a Receiver.           10.     Each Assignor shall pay all costs, charges and expenses incurred by Laurus or any Receiver, whether directly or for services rendered (including, solicitor''s costs on a solicitor and his own client basis, auditor''s costs, other legal expenses and Receiver remuneration) in enforcing this Agreement and in enforcing or collecting Obligations and all such expenses together with any money owing as a result of any borrowing permitted hereby shall be a charge on the proceeds of realization and shall be secured hereby.           11.     Each Assignor acknowledges that its business and financial relationships with Laurus are unique from its relationship with any other of its creditors, and agrees that it shall not file any plan of arrangement under Title 11, United States Code, the Companies'' Creditors Arrangement Act (Canada) or make any proposal under the Bankruptcy and Insolvency Act (Canada) which provides for, or would permit directly or indirectly, Laurus to be classified with any other creditor for purposes of such plan or proposal or otherwise.           12.     If any provision of this Master Security Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate this Master Security Agreement as a whole, but this Master Security Agreement shall be construed as though it did not 6 contain the particular provision held to be invalid or unenforceable and the rights and obligations of the parties shall be construed and enforced only to such extent as shall be permitted by applicable law.           13.     This Master Security Agreement shall be governed by and construed in accordance with the laws of the State of New York and cannot be terminated orally. All of the rights, remedies, options, privileges and elections given to Laurus hereunder shall inure to the benefit of Laurus'' successors and assigns. The term "Laurus" as herein used shall include Laurus, any parent of Laurus'', any of Laurus'' subsidiaries and any co--subsidiaries of Laurus'' parent, whether now existing or hereafter created or acquired, and all of the terms, conditions, promises, covenants, provisions and warranties of this Agreement shall inure to the benefit of and shall bind the representatives, successors and assigns of each Assignor and each of the foregoing. Laurus and each Assignor hereby (a) waive any and all right to trial by jury in litigation relating to this Agreement and the transactions contemplated hereby and each Assignor agrees not to assert any counterclaim in such litigation, (b) submit to the nonexclusive jurisdiction of any New York State court sitting in the borough of Manhattan, the city of New York or Ontario Superior Court of Justice, in each case, whichever Laurus at its sole discretion may elect, and (c) waive any objection Laurus or each Assignor may have as to the bringing or maintaining of such action with any such court.           14.     All notices from Laurus to any Assignor shall be sufficiently given if sent by overnight courier or delivered to such Assignor''s address set forth below.   Very truly yours,   MAGIC LANTERN GROUP, INC. By: ____________________ Name: Title: Address:   TUTORBUDDY INC. By: ____________________ Name: Title: Address: 7   SONOPTIC TECHNOLOGIES INC. By: ____________________ Name: Title: Address: MAGICVISION MEDIA INC.   By: ____________________ Name: Title: Address: MAGIC LANTERN COMMUNICATIONS LTD. By: ____________________ Name: Title: Address:   ACKNOWLEDGED: By:______________________ Name: Title     8                   SCHEDULE A Entity Jurisdiction of Organization Identification Number Magic Lantern Group Inc.   New York 13--3016967 Magicvision Media, Inc. Ontario 1490681 Magic Lantern Communications Ltd. Canada 324397--4 Tutorbuddy Inc. Canada 373591--5 Synoptic Technologies Inc. Canada 063732--7   9

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form10-Q (Mark One) x QUARTERLY REPORT UNDER SECTION13 OR 15(d)OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended September 30, 2010 OR o TRANSITION REPORT UNDER SECTION13 OR 15(d)OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period fromto COMMISSION FILE NUMBER 333-151633 MAGNOLIA SOLAR CORPORATION (Exact Name of small business issuer as specified in its charter) Nevada 39-2075693 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 54 Cummings Park, Suite 316, Woburn, MA 01801 (Address of principal executive offices) (Zip Code) Issuer’s telephone Number: (781) 497-2900 Indicate by check mark whether the issuer (1)filed all reports required to be filed by Section13 or 15(d)of the Exchange Act 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 o Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No o Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule12b-2 of the Exchange Act. (Check one): Large accelerated filer o Accelerated filer o Non-accelerated filer o Smaller reporting company x (Do not check if a smaller reporting company) Indicate by check mark whether the registrant is a shell company (as defined in Rule12b-2 of the Exchange Act). Yes o No x As of November 8, 2010 the issuer had 23,905,000 outstanding shares of Common Stock. 1 TABLE OF CONTENTS Page PARTI Item 1. Financial Statements 3 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operation 25 Item 3. Quantitative and Qualitative Disclosures About Market Risk 27 Item 4T Controls and Procedures 27 PARTII Item 1. Legal Proceedings 28 Item 1A. Risk Factors 28 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 28 Item 3. Defaults Upon Senior Securities 28 Item 4. Reserved 28 Item 5. Other Information 29 Item 6. Exhibits 30 2 PARTI ITEM 1. FINANCIAL STATEMENTS. MAGNOLIA SOLAR CORPORATION (FORMERLY MOBILIS RELOCATION SERVICES, INC.) (A DEVELOPMENT STAGE COMPANY) CONSOLIDATED FINANCIAL STATEMENTS SEPTEMBER 30, 2010 Table of Contents Consolidated Financial Statements: Balance Sheets as of September 30, 2010 (unaudited) and December 31, 2009 4 Consolidated Statements of Operations for the nine and three months ended September 30, 2010 and 2009 and for the period January 8, 2008 (Inception) through September 30, 2010 5 Consolidated Statements of Changes in Stockholders’ Equity for the period January 8, 2008 (Inception) through September 30, 2010 6 Consolidated Statements of Cash Flows for the nine months ended September 30, 2010 and 2009 and for the period January 8, 2008 (Inception) through September 30, 2010 7 Notes to Consolidated Financial Statements 8 3 MAGNOLIA SOLAR CORPORATION (FORMERLY MOBILIS RELOCATION SERVICES, INC.) (A DEVELOPMENT STAGE COMPANY) CONSOLIDATED BALANCE SHEETS SEPTEMBER 30, 2010 (UNAUDITED) AND DECEMBER 31, 2009 ASSETS September 30, December 31, (unaudited) CURRENT ASSETS Cash $ $ Accounts receivable Total current assets Property and equipment, net of accumulated depreciation - License, net of accumulated amortization Deferred financing fees, net of accumulated amortization Total other assets TOTAL ASSETS $ $ LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES Accounts payable and accrued expenses $ $ Loan payable - related party - Total current liabilities Original Issue Discount Senior Secured Convertible Promissory Note, net of discount TOTAL LIABILITIES STOCKHOLDERS' EQUITY Common stock, $0.001 par value, 98,684,213 shares authorized, 23,905,000 and 23,830,000 shares issued and outstanding Additional paid in capital Additional paid in capital - warrants Deficit accumulated during the development stage ) ) Total stockholders' equity TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ $ 4 MAGNOLIA SOLAR CORPORATION (FORMERLY MOBILIS RELOCATION SERVICES, INC.) (A DEVELOPMENT STAGE COMPANY) CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED) FOR THE NINE AND THREE MONTHS ENDED SEPTEMBER 30, 2 FOR THE PERIOD JANUARY 8, 2008 (INCEPTION) THROUGH SEPTEMBER 30, 2010 JANUARY 8, 2008 NINE MONTHS ENDED THREE MONTHS ENDED (INCEPTION) THROUGH SEPTEMBER 30, 2010 SEPTEMBER 30, 2009 SEPTEMBER 30, 2010 SEPTEMBER 30, 2009 SEPTEMBER 30, 2010 REVENUE $ $

Castlerigg Equity Event and Arbitrage Fund (the “Fund”) Supplement dated March 30, 2015 to the Statement of Additional Information (the “SAI”) dated January 9, 2015. The following section is herebyinserted before the section entitled “Security Ratings Information” on page 4 of the SAI: Master Limited Partnerships The Fund may invest in publicly traded master limited partnerships ("MLPs") that are registered under the Securities Exchange Act of 1934, as amended, and listed on a major United States stock exchange, if the issuer meets the Fund's investment criteria. MLPs are businesses organized as limited partnerships which trade their proportionate shares of the partnership (units) on a public exchange. MLPs are required to pay out most or all of their cash flow in distributions. This pass through creates passive income or losses, along with dividend and investment income. The MLPs the Fund may purchase are comprised of a general partner (the "GP") and multiple limited partners (the "LP Holders"). The GP is responsible for the operations and the maintenance of the partnership's businesses, while the LP Holders assume economic risk up to their level of investment. Typically, the GP has a 1% to 2% investment in the MLP, but can extract a higher percentage of the partnership's profits as the MLP's distributions increase. This serves as an incentive to the GP to grow the partnership's distributions. Generally speaking, MLP investment returns are enhanced during periods of declining or low interest rates and tend to be negatively influenced when interest rates are rising. As an income vehicle, the unit price can be influenced by general interest rate trends independent of specific underlying fundamentals. In addition, most MLPs are fairly leveraged and typically carry a portion of a "floating" rate debt. As such, a significant upward swing in interest rates would also drive interest expense higher. Furthermore, most MLPs grow by acquisitions partly financed by debt, and higher interest rates could make it more difficult to make acquisitions. * * * For more information, please contact a Fund customer service representative toll free at 855-328-9764 PLEASE RETAIN FOR FUTURE REFERENCE.

Title: Alcohol sexual consent (indiana) Question:Hello, I'll make this as short as possible. A girl and I have been friends, had sex before, but it's been a few months. Last night we had about 5 drinks and she came over. We made out, I kissed her neck, and started to undo her pants but she pushed my hand off so I stopped. She got on top of me, was sucking on my chest, and playing with me through my pants with her hands. She said "I think it's my turn now" and I flipped us over to me on top, undid her pants, and took them off. She kept trying to push my unprotected self into her, but I didn't want to without protection, so I said to hang on, and I put protection on. Then I got back on top of her, and she pushed me in her. After about 5 minutes she said let's stop, stood up, and started to put her clothes on and left. She was acting really strange, and her mother is a lawyer. In the case this goes to court, would I be held accountable? Answer #1: I'm going to say something that's probably going to be a little controversial, so I want to preface it by saying that I've seen firsthand the coercive and horrible affects sexual assault can have on women and men, and how much it affects not just them, but the people they work with. It's especially problematic in the extremely close knit environments like the military and colleges, where it's also most prevleant. There are incredible agencies and groups that do great work in prevention and training to try and address the problem, and it needs to be done. That being said, within the sexual assault prevention and response communities there exists a subset that have built their entire business models and training materials on flawed legal arguments, and a need to almost brainwash women into convincing them they have been assaulted, when legally and factually it didn't occur. Like the thousands of public seminars at campus dorms and military bases that try and convince people that "after one drink you can't consent". Women are walking into police stations now and literally telling police "I thought I wanted it at the time, but I had a sip of beer earlier in the night so I don't know if I was raped", when clearly describing all of the events of the evening with no loss of memory, and clearly describing their active participation. The problem is, for the vast majority of jurisdictions, it *does not matter if the victim was drunk*. It matters if they are ***incapacitated*** by alcohol, which is a much higher bar. But we've entered an age where any intersection of alcohol and sex in a college setting is going to automatically be looked at through the lens of a sexual assault, even when both parties are giving unambiguous consent and participating fully in the events. And I think that our unwillingness to talk about that grey line in the SAPR trainings is hurting our response efforts in the cases when the survivor really does need assistance; like if they're plyed with drinks until they blackout, or drugged, or straight out assaulted. We want to set easy to follow simple sounding rules that scare people on the side of not doing anything, and instead have begun criminalizing many simple social interactions. That's all a long way of saying - if everything happened as you described, I don't see anything legally actionable. But if she reported it, I guarantee itd be looked at as a sexual assault, and you'd need to defend yourself against that allegation; along with all that entails (getting a lawyer, cutting off all contact, etc.)

Title: Lawyer turned down settlement without discussing with me? (MN) Question:I'm currently suing a car manufacturer for lemon law. The reviews for this lawyer say he is really bad at communicating but gets results. He gave the car manufacturer an ultimatem by a certain day and it came and went with no info from the lawyer. I contacted the lawyer and he said that they gave a really low settlement offer of $3,000 and he turned it down. It rubbed me the wrong way because he never discussed this with me and I had to go to him for an update on the status? I would've likely turned it down also but the whole situation I'm uneasy about. Any help? Answer #1: Your attorney has a legal and ethical obligation to advise you of all settlement offers. If I were you, I would look for a new attorney and file a complaint with the Attorney Grievance Commission in your state. Answer #2: Realistically OP you said right in your post that &gt; The reviews for this lawyer say he is really bad at communicating but gets results. And this is why he gets those reviews. You really shouldn't be entirely surprised/shocked here. Yes, he should have consulted you. It is disrespectful and technically potentially illegal/unethical of him not to do so. However, you did also say that &gt; we didn't discuss min, just what I ideally want. Which does give him slightly firmer ground for rejecting the low-ball offer without consulting you - even if he still should have consulted you first. Because you *did* give him a specific target to try to aim for here. &amp;nbsp; Now, going forward, you are certainly within your legal rights to file a complaint and seek a new lawyer...but it is going to be a major pain in the neck to try to change attorneys mid-case here, and any new attorney you find to pick up the case half-finished is going to be wondering if you plan to find fault with them as well. So... I wouldn't choose this battle to fight right now - it isn't worth it. If it really bothers you then by all means explicitly tell him in writing (since you are communicating via email) that you want to be kept in the loop on future offers, even if they are low. But unless you have reason to suspect that he isn't trying to get the amount of money you are seeking there is no reason to file a complaint and try to change attorneys right now. Let him finish the case. You can always file the complaint as a formality *after* the case is finished - when it won't have such an impact on your current lawsuit. If you decide his behavior warrants it. ^Disclaimer: ^Not ^A ^Lawyer

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-Q QUARTERLY SCHEDULE OF PORTFOLIO HOLDINGS OF REGISTERED MANAGEMENT INVESTMENT COMPANY Investment Company Act file number: (811- ) Exact name of registrant as specified in charter: Putnam Investment Funds Address of principal executive offices: One Post Office Square, Boston, Massachusetts 02109 Name and address of agent for service: Beth S. Mazor, Vice President One Post Office Square Boston, Massachusetts 02109 Copy to: John W. Gerstmayr, Esq. Ropes & Gray LLP One International Place Boston, Massachusetts 02110 Registrant’s telephone number, including area code: (617) 292-1000 Date of fiscal year end: July 31, 2007 Date of reporting period: April 30, 2007 Item 1. Schedule of Investments: Putnam Growth Opportunities Fund The fund's portfolio 4/30/07 (Unaudited) COMMON STOCKS (99.8%)(a) Shares Value Advertising and Marketing Services (0.9%) Omnicom Group, Inc. $5,423,978 Aerospace and Defense (7.0%) Boeing Co. (The) L-3 Communications Holdings, Inc. Lockheed Martin Corp. United Technologies Corp. Automotive (1.3%) Harley-Davidson, Inc. Banking (3.3%) Commerce Bancorp, Inc. U.S. Bancorp Wells Fargo & Co. Biotechnology (1.8%) Amgen, Inc. (NON) (SEG) Genentech, Inc. (NON) Building Materials (0.6%) Sherwin-Williams Co. (The) Commercial and Consumer Services (2.0%) Alliance Data Systems Corp. (NON) Dun & Bradstreet Corp. (The) Equifax, Inc. Communications Equipment (3.8%) Cisco Systems, Inc. (NON) Qualcomm, Inc. Computers (4.6%) Apple Computer, Inc. (NON) Dell, Inc. (NON) EMC Corp. (NON) (S) Network Appliance, Inc. (NON) Conglomerates (1.6%) Danaher Corp. Consumer Finance (3.5%) Capital One Financial Corp. Countrywide Financial Corp. Consumer Goods (2.8%) Colgate-Palmolive Co. Procter & Gamble Co. (The) Consumer Services (0.5%) Liberty Media Holding Corp. - Interactive Class A (NON) Electronics (1.1%) Amphenol Corp. Class A Microchip Technology, Inc. (S) Energy (1.0%) Halliburton Co. Financial (2.0%) American Express Co. Assurant, Inc. (S) Moody's Corp. (S) Health Care Services (6.9%) Express Scripts, Inc. (NON) Medco Health Solutions, Inc. (NON) UnitedHealth Group, Inc. WellPoint, Inc. (NON) Homebuilding (0.7%) NVR, Inc. (NON) (S) Insurance (4.1%) American International Group, Inc. Berkshire Hathaway, Inc. Class B (NON) Investment Banking/Brokerage (8.4%) Bear Stearns Cos., Inc. (The) BlackRock, Inc. (S) E*Trade Financial Corp. (NON) Franklin Resources, Inc. Goldman Sachs Group, Inc. (The) T. Rowe Price Group, Inc. Lodging/Tourism (1.6%) Las Vegas Sands Corp. (NON) Royal Caribbean Cruises, Ltd. Wyndham Worldwide Corp. (NON) Machinery (2.3%) Caterpillar, Inc. Joy Global, Inc. Parker-Hannifin Corp. Media (1.3%) Walt Disney Co. (The) Medical Technology (2.7%) Becton, Dickinson and Co. Medtronic, Inc. St. Jude Medical, Inc. (NON) Oil & Gas (4.5%) Devon Energy Corp. EOG Resources, Inc. Hess Corp. Occidental Petroleum Corp. Valero Energy Corp. Pharmaceuticals (2.9%) Johnson & Johnson Teva Pharmaceutical Industries, Ltd. ADR (Israel) Publishing (1.9%) McGraw-Hill Cos., Inc. (The) Real Estate (1.1%) CB Richard Ellis Group, Inc. Class A (NON) Restaurants (2.5%) Starbucks Corp. (NON) (S) Yum! Brands, Inc. Retail (7.4%) Abercrombie & Fitch Co. Class A Bed Bath & Beyond, Inc. (NON) Best Buy Co., Inc. Home Depot, Inc. (The) Kohl's Corp. (NON) Lowe's Cos., Inc. (S) Ross Stores, Inc. (S) Staples, Inc. Semiconductor (1.0%) Applied Materials, Inc. Software (6.8%) Adobe Systems, Inc. (NON) (S) Autodesk, Inc. (NON) Microsoft Corp. Oracle Corp. (NON) Technology Services (5.3%) Accenture, Ltd. Class A (Bermuda) 76,900 3,006,790 Automatic Data Processing, Inc. 184,300 8,249,268 eBay, Inc. (NON) (S) 242,800 8,240,632 Google, Inc. Class A (NON) 22,477 10,595,208 Western Union Co. (The) 98,105 2,065,110 Telecommunications (0.1%) MetroPCS Communications, Inc. (NON) 15,170 Textiles (0.2%) Coach, Inc. (NON) 24,600 Transportation Services (0.3%) Expeditors International of Washington, Inc. (S) 45,600 Total common stocks (cost $562,439,139) SHORT-TERM INVESTMENTS (5.0%)(a) Principal amount/shares Value Putnam Prime Money Market Fund (e) 4,864,843 $4,864,843 Short-term investments held as collateral for loaned securities with yields ranging from 5.23% to 5.46% and due dates ranging from May 1, 2007 to June 22, 2007 (d) $25,574,117 25,533,515 Total short-term investments (cost $30,398,358) TOTAL INVESTMENTS Total investments (cost $592,837,497) (b) FUTURES CONTRACTS OUTSTANDING at 4/30/07 (Unaudited) Number of Expiration Unrealized contracts Value date appreciation S&P 500 Index (Long) 7 $2,604,700 Jun-07 $746 NOTES (a) Percentages indicated are based on net assets of $612,503,615. (b) The aggregate identified cost on a tax basis is $593,094,295, resulting in gross unrealized appreciation and depreciation of $62,347,646 and $14,061,342, respectively, or net unrealized appreciation of $48,286,304. (NON) Non-income-producing security. (SEG) A portion of this security was pledged and segregated with the custodian to cover margin requirements for futures contracts at April 30, 2007. (d) The fund may lend securities, through its agents, to qualified borrowers in order to earn additional income. The loans are collateralized by cash and/or securities in an amount at least equal to the market value of the securities loaned. The market value of securities loaned is determined daily and any additional required collateral is allocated to the fund on the next business day. The risk of borrower default will be borne by the fund’s agents; the fund will bear the risk of loss with respect to the investment of the cash collateral. At April 30, 2007, the value of securities loaned amounted to $24,875,142. The fund received cash collateral of $25,533,515 which is pooled with collateral of other Putnam funds into 35 issues of high-grade, short-term investments. (e) The fund invests in Putnam Prime Money Market Fund, an open-end management investment company managed by Putnam Investment Management, LLC ("Putnam Management"), the fund's manager, an indirect wholly-owned subsidiary of Putnam, LLC. Investments in Putnam Prime Money Market Fund are valued at its closing net asset value each business day. Management fees paid by the fund are reduced by an amount equal to the management and administrative fees paid by Putnam Prime Money Market Fund with respect to assets invested by the fund in Putnam Prime Money Market Fund. Income distributions earned by the fund totaled $138,060 for the period ended April 30, 2007. During the period ended April 30, 2007, cost of purchases and proceeds of sales of investments in Putnam Prime Money Market Fund aggregated $104,965,835 and $100,100,992, respectively. (S) Securities on loan, in part or in entirety, at April 30, 2007. At April 30, 2007, liquid assets totaling $746 have been designated as collateral for open futures contracts. ADR after the name of a foreign holding stands for American Depository Receipts representing ownership of foreign securities on deposit with a custodian bank. Security valuation Investments for which market quotations are readily available are valued at the last reported sales price on their principal exchange, or official closing price for certain markets. If no sales are reported as in the case of some securities traded over-the-counter a security is valued at its last reported bid price. Many securities markets and exchanges outside the U.S. close prior to the close of the New York Stock Exchange and therefore the closing prices for securities in such markets or on such exchanges may not fully reflect events that occur after such close but before the close of the New York Stock Exchange. Accordingly, on certain days, the fund will fair value foreign equity securities taking into account multiple factors, including movements in the U.S. securities markets. The number of days on which fair value prices will be used will depend on market activity and it is possible that fair value prices will be used by the fund to a significant extent. Securities quoted in foreign currencies, if any, are translated into U.S. dollars at the current exchange rate. Certain investments, including certain restricted securities, are also valued at fair value following procedures approved by the Trustees. Such valuations and procedures are reviewed periodically by the Trustees. The fair value of securities is generally determined as the amount that the fund could reasonably expect to realize from an orderly disposition of such securities over a reasonable period of time. By its nature, a fair value price is a good faith estimate of the value of a security at a given point in time and does not reflect an actual market price, which may be different by a material amount. Futures and options contracts The fund may use futures and options contracts to hedge against changes in the values of securities the fund owns or expects to purchase, or for other investment purposes. The fund may also write options on swaps or securities it owns or in which it may invest to increase its current returns. The potential risk to the fund is that the change in value of futures and options contracts may not correspond to the change in value of the hedged instruments. In addition, losses may arise from changes in the value of the underlying instruments, if there is an illiquid secondary market for the contracts, or if the counterparty to the contract is unable to perform. Risks may exceed amounts recognized on the statement of assets and liabilities. When the contract is closed, the fund records a realized gain or loss equal to the difference between the value of the contract at the time it was opened and the value at the time it was closed. Realized gains and losses on purchased options are included in realized gains and losses on investment securities. If a written call option is exercised, the premium originally received is recorded as an addition to sales proceeds. If a written put option is exercised, the premium originally received is recorded as a reduction to the cost of investments. Futures contracts are valued at the quoted daily settlement prices established by the exchange on which they trade. The fund and the broker agree to exchange an amount of cash equal to the daily fluctuation in the value of the futures contract. Such receipts or payments are known as “variation margin.” Exchange traded options are valued at the last sale price or, if no sales are reported, the last bid price for purchased options and the last ask price for written options. Options traded over-the-counter are valued using prices supplied by dealers. Futures and written option contracts outstanding at period end, if any, are listed after the fund’s portfolio. For additional information regarding the fund please see the fund's most recent annual or semiannual shareholder report filed on the Securities and Exchange Commission's Web site, www.sec.gov, or visit Putnam's Individual Investor Web site at www.putnaminvestments.com Item 2. Controls and Procedures: (a) The registrant's principal executive officer and principal financial officer have concluded, based on their evaluation of the effectiveness of the design and operation of the registrant's disclosure controls and procedures as of a date within 90 days of the filing date of this report, that the design and operation of such procedures are generally effective to provide reasonable assurance that information required to be disclosed by the registrant in this report is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms. (b) Changes in internal control over financial reporting: Not applicable Item 3. Exhibits: Separate certifications for the principal executive officer and principal financial officer of the registrant as required by Rule 30a-2(a) under the Investment Company Act of 1940, as amended, are filed herewith. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Putnam Investment Funds By (Signature and Title): /s/ Janet C. Smith Janet C. Smith Principal Accounting Officer Date: June 29, 2007 Pursuant to the requirements of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. By (Signature and Title): /s/ Charles E. Porter Charles E. Porter Principal Executive Officer Date: June 29, 2007 By (Signature and Title): /s/ Steven D. Krichmar Steven D. Krichmar Principal Financial Officer Date: June 29, 2007 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-Q QUARTERLY SCHEDULE OF PORTFOLIO HOLDINGS OF REGISTERED MANAGEMENT INVESTMENT COMPANY Investment Company Act file number: (811- ) Exact name of registrant as specified in charter: Putnam Investment Funds Address of principal executive offices: One Post Office Square, Boston, Massachusetts 02109 Name and address of agent for service: Beth S. Mazor, Vice President One Post Office Square Boston, Massachusetts 02109 Copy to: John W. Gerstmayr, Esq. Ropes & Gray LLP One International Place Boston, Massachusetts 02110 Registrant’s telephone number, including area code: (617) 292-1000 Date of fiscal year end: July 31, 2007 Date of reporting period: April 30, 2007 Item 1. Schedule of Investments: Putnam Research Fund The fund's portfolio 4/30/07 (Unaudited) COMMON STOCKS (100.3%)(a) Shares Value Aerospace and Defense (2.4%) Boeing Co. (The) 107,700 $10,016,100 Lockheed Martin Corp. 88,400 8,498,776 Airlines (0.7%) Southwest Airlines Co. 371,800 Automotive (0.4%) Harley-Davidson, Inc. (S) 51,900 Banking (5.7%) Bank of America Corp. 572,700 29,150,429 Commerce Bancorp, Inc. 286,000 9,563,840 U.S. Bancorp 148,700 5,107,845 Beverage (2.9%) Anheuser-Busch Cos., Inc. 123,600 6,079,884 Coca-Cola Enterprises, Inc. (S) 157,900 3,464,326 Molson Coors Brewing Co. Class B 25,100 2,366,428 PepsiCo, Inc. (S) 165,300 10,924,677 Biotechnology (2.5%) Amgen, Inc. (NON) 171,200 10,980,768 Biogen Idec, Inc. (NON) (S) 179,300 8,464,753 Chemicals (1.4%) Celanese Corp. Ser. A 120,800 4,006,936 E.I. du Pont de Nemours & Co. 136,000 6,687,120 Communications Equipment (3.5%) Cisco Systems, Inc. (NON) 715,600 19,135,144 Qualcomm, Inc. 180,300 7,897,140 Computers (3.5%) Apple Computer, Inc. (NON) 47,100 4,700,580 EMC Corp. (NON) 487,000 7,392,660 IBM Corp. 149,100 15,239,511 Conglomerates (2.5%) Danaher Corp. (S) 113,900 8,108,541 Tyco International, Ltd. (Bermuda) 354,700 11,573,861 Consumer Finance (4.3%) Capital One Financial Corp. 235,400 17,480,804 Countrywide Financial Corp. (S) 422,100 15,651,468 Consumer Goods (3.5%) Clorox Co. 123,600 8,291,088 Newell Rubbermaid, Inc. 115,000 3,527,050 Procter & Gamble Co. (The) 241,900 15,556,589 Consumer Services (0.5%) Liberty Media Holding Corp. - Interactive Class A (NON) 165,700 Electric Utilities (4.0%) Edison International 141,508 7,407,944 Entergy Corp. 71,200 8,055,568 Exelon Corp. 121,200 9,139,692 PG&E Corp. 118,100 5,975,860 Electronics (0.5%) Atmel Corp. (NON) 744,300 Energy (1.2%) Cameron International Corp. (NON) 66,400 4,287,448 Noble Corp. 54,100 4,712,110 Financial (1.9%) MGIC Investment Corp. (S) 131,600 8,107,876 Radian Group, Inc. (S) 116,800 6,787,248 Food (0.5%) Kraft Foods, Inc. Class A 116,536 Health Care Services (1.7%) Health Management Associates, Inc. Class A 284,800 3,044,512 Medco Health Solutions, Inc. (NON) 49,000 3,822,980 WellPoint, Inc. (NON) 83,500 6,593,995 Household Furniture and Appliances (0.8%) Whirlpool Corp. (S) 60,600 Insurance (3.7%) American International Group, Inc. 277,500 19,400,025 Berkshire Hathaway, Inc. Class B (NON) 1,365 4,952,220 Everest Re Group, Ltd. (Barbados) 42,000 4,226,880 Investment Banking/Brokerage (5.3%) Bear Stearns Cos., Inc. (The) 110,600 17,220,420 E*Trade Financial Corp. (NON) 286,900 6,334,752 Goldman Sachs Group, Inc. (The) 73,600 16,089,696 IndyMac Bancorp, Inc. (S) 53,300 1,611,792 Lodging/Tourism (1.0%) Wyndham Worldwide Corp. (NON) 232,440 Machinery (1.7%) Caterpillar, Inc. 136,600 9,919,892 Parker-Hannifin Corp. 39,200 3,611,888 Manufacturing (1.1%) Illinois Tool Works, Inc. 158,600 Medical Technology (1.9%) Becton, Dickinson and Co. 61,100 4,807,959 Boston Scientific Corp. (NON) 369,600 5,706,624 St. Jude Medical, Inc. (NON) 96,100 4,112,119 Metals (1.7%) Freeport-McMoRan Copper & Gold, Inc. Class B 90,700 6,091,412 United States Steel Corp. (S) 66,400 6,742,256 Oil & Gas (8.8%) BP PLC ADR (United Kingdom) 162,500 10,939,500 ConocoPhillips 227,800 15,797,930 Devon Energy Corp. 84,400 6,150,228 Marathon Oil Corp. 113,000 11,475,150 Newfield Exploration Co. (NON) 87,500 3,828,125 Occidental Petroleum Corp. 125,900 6,495,609 Valero Energy Corp. 186,100 13,069,803 Pharmaceuticals (5.5%) Barr Pharmaceuticals, Inc. (NON) 65,200 3,153,072 Johnson & Johnson 365,900 23,498,098 Pfizer, Inc. 457,495 12,105,318 Watson Pharmaceuticals, Inc. (NON) 125,300 3,420,690 Publishing (2.3%) Gannett Co., Inc. (S) 110,700 6,316,542 Idearc, Inc. 127,820 4,441,745 McGraw-Hill Cos., Inc. (The) 107,600 7,051,028 Railroads (0.6%) Norfolk Southern Corp. 89,100 Real Estate (0.7%) CB Richard Ellis Group, Inc. Class A (NON) 157,000 Regional Bells (1.9%) Verizon Communications, Inc. 385,800 Restaurants (0.8%) Starbucks Corp. (NON) 189,500 Retail (5.7%) Best Buy Co., Inc. 154,100 7,188,765 Big Lots, Inc. (NON) 208,800 6,723,360 Kohl's Corp. (NON) (S) 80,200 5,938,008 OfficeMax, Inc. 50,400 2,480,688 Ross Stores, Inc. 111,200 3,686,280 Sears Holdings Corp. (NON) 15,100 2,882,741 Staples, Inc. 189,500 4,699,600 Wal-Mart Stores, Inc. 222,300 10,652,616 Shipping (0.4%) Overseas Shipholding Group 40,200 Software (5.1%) Adobe Systems, Inc. (NON) 161,200 6,699,472 McAfee, Inc. (NON) 102,400 3,326,976 Microsoft Corp. 568,400 17,017,896 Oracle Corp. (NON) 429,100 8,067,080 Symantec Corp. (NON) 226,400 3,984,640 Technology Services (2.6%) Accenture, Ltd. Class A (Bermuda) 70,900 2,772,190 Computer Sciences Corp. (NON) 152,700 8,480,958 eBay, Inc. (NON) 152,600 5,179,244 Western Union Co. (The) 167,500 3,525,875 Telecommunications (1.7%) MetroPCS Communications, Inc. (NON) 19,130 536,597 Sprint Nextel Corp. 625,600 12,530,768 Tobacco (1.5%) Altria Group, Inc. 168,400 Transportation Services (1.3%) United Parcel Service, Inc. Class B 146,900 Waste Management (0.6%) Waste Management, Inc. 131,200 Total common stocks (cost $717,063,682) SHORT-TERM INVESTMENTS (5.4%)(a) (cost $41,927,675) Principal amount Value Short-term investments held as collateral for loaned securities with yields ranging from 5.23% to 5.46% and due dates ranging from May 1, 2007 to June 22, 2007 (d) $41,994,347 TOTAL INVESTMENTS Total investments (cost $758,991,357) (b) FORWARD CURRENCY CONTRACTS TO BUY at 4/30/07 (aggregate face value $18,688) (Unaudited) Aggregate Delivery Unrealized Value face value date appreciation Japanese Yen $18,794 $18,688 5/16/07 $106 FORWARD CURRENCY CONTRACTS TO SELL at 4/30/07 (aggregate face value $11,428,582) (Unaudited) Aggregate Delivery Unrealized Value face value date depreciation British Pound $11,803,934 $11,409,936 6/20/07 $(393,998) Japanese Yen 18,794 18,646 5/16/07 (148) Total NOTES (a) Percentages indicated are based on net assets of $773,889,071. (b) The aggregate identified cost on a tax basis is $759,363,629, resulting in gross unrealized appreciation and depreciation of $76,960,581 and $18,042,689, respectively, or net unrealized appreciation of $58,917,892. (NON) Non-income-producing security. (d) The fund may lend securities, through its agents, to qualified borrowers in order to earn additional income. The loans are collateralized by cash and/or securities in an amount at least equal to the market value of the securities loaned. The market value of securities loaned is determined daily and any additional required collateral is allocated to the fund on the next business day. The risk of borrower default will be borne by the fund’s agents; the fund will bear the risk of loss with respect to the investment of the cash collateral. At April 30, 2007, the value of securities loaned amounted to $40,858,482. The fund received cash collateral of $41,927,675, which is pooled with collateral of other Putnam funds into 35 issues of high-grade, short-term investments. The fund also received high-quality, highly rated securities of $102,700 in non-cash collateral. The fund invests in Putnam Prime Money Market Fund, an open-end management investment company managed by Putnam Investment Management, LLC ("Putnam Management"), the fund's manager, an indirect wholly-owned subsidiary of Putnam, LLC. Investments in Putnam Prime Money Market Fund are valued at its closing net asset value each business day. Management fees paid by the fund are reduced by an amount equal to the management and administrative fees paid by Putnam Prime Money Market Fund with respect to assets invested by the fund in Putnam Prime Money Market Fund. Income distributions earned by the fund totaled $333,804 for the period ended April 30, 2007. During the period ended April 30, 2007, cost of purchases and proceeds of sales of investments in Putnam Prime Money Market Fund aggregated $161,387,005 and $169,666,460, respectively. (S) Securities on loan, in part or in entirety, at April 30, 2007. At April 30, 2007, liquid assets totaling $856,284 have been designated as collateral for open forward contracts. ADR after the name of a foreign holding stands for American Depository Receipts, representing ownership of foreign securities on deposit with a custodian bank. Security valuation Investments for which market quotations are readily available are valued at the last reported sales price on their principal exchange, or official closing price for certain markets. If no sales are reported as in the case of some securities traded over-the-counter a security is valued at its last reported bid price. Many securities markets and exchanges outside the U.S. close prior to the close of the New York Stock Exchange and therefore the closing prices for securities in such markets or on such exchanges may not fully reflect events that occur after such close but before the close of the New York Stock Exchange. Accordingly, on certain days, the fund will fair value foreign equity securities taking into account multiple factors, including movements in the U.S. securities markets. The number of days on which fair value prices will be used will depend on market activity and it is possible that fair value prices will be used by the fund to a significant extent. Securities quoted in foreign currencies, if any, are translated into U.S. dollars at the current exchange rate. Certain investments, including certain restricted securities, are also valued at fair value following procedures approved by the Trustees. Such valuations and procedures are reviewed periodically by the Trustees. The fair value of securities is generally determined as the amount that the fund could reasonably expect to realize from an orderly disposition of such securities over a reasonable period of time. By its nature, a fair value price is a good faith estimate of the value of a security at a given point in time and does not reflect an actual market price, which may be different by a material amount. Forward currency contracts The fund may buy and sell forward currency contracts, which are agreements between two parties to buy and sell currencies at a set price on a future date. These contracts are used to protect against a decline in value relative to the U.S. dollar of the currencies in which its portfolio securities are denominated or quoted (or an increase in the value of a currency in which securities a fund intends to buy are denominated, when a fund holds cash reserves and short-term investments). The U.S. dollar value of forward currency contracts is determined using current forward currency exchange rates supplied by a quotation service. The market value of the contract will fluctuate with changes in currency exchange rates. The contract is marked-to-market daily and the change in market value is recorded as an unrealized gain or loss. When the contract is closed, the fund records a realized gain or loss equal to the difference between the value of the contract at the time it was opened and the value at the time it was closed. The fund could be exposed to risk if the value of the currency changes unfavorably, if the counterparties to the contracts are unable to meet the terms of their contracts or if the fund is unable to enter into a closing position. Risks may exceed amounts recognized on the statement of assets and liabilities. Forward currency contracts outstanding at period end, if any, are listed after the fund’s portfolio. For additional information regarding the fund please see the fund's most recent annual or semiannual shareholder report filed on the Securities and Exchange Commission's Web site, www.sec.gov, or visit Putnam's Individual Investor Web site at www.putnaminvestments.com Item 2. Controls and Procedures: (a) The registrant's principal executive officer and principal financial officer have concluded, based on their evaluation of the effectiveness of the design and operation of the registrant's disclosure controls and procedures as of a date within 90 days of the filing date of this report, that the design and operation of such procedures are generally effective to provide reasonable assurance that information required to be disclosed by the registrant in this report is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms. (b) Changes in internal control over financial reporting: Not applicable Item 3. Exhibits: Separate certifications for the principal executive officer and principal financial officer of the registrant as required by Rule 30a-2(a) under the Investment Company Act of 1940, as amended, are filed herewith. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Putnam Investment Funds By (Signature and Title): /s/ Janet C. Smith Janet C. Smith Principal Accounting Officer Date: June 29, 2007 Pursuant to the requirements of the Securities Exchange Act of 1934 and the Investment Company Act of 1940, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. By (Signature and Title): /s/ Charles E. Porter Charles E. Porter Principal Executive Officer Date: June 29, 2007 By (Signature and Title): /s/ Steven D. Krichmar Steven D. Krichmar Principal Financial Officer Date: June 29, 2007

  EXHIBIT 10.1     Treppel Loan Agreement   WHEREAS, Elite Pharmaceuticals, Inc., a Nevada corporation (the “Borrower”), and Jerry Treppel, a resident of New Jersey (the “Lender”) entered into that certain Loan Agreement dated June 12, 2012, as amended on December 5, 2012 (the “Agreement”); and   WHEREAS, the Lender and Borrower desire to amend the Agreement and the related Promissory Note to change the maturity date by which the principal amount of the Credit Line (as defined in the Agreement) is due; and   WHEREAS, pursuant to Section 7.5 of the Agreement, the Agreement can be amended provided such amendment is in writing and executed by the Lender and the Borrower.   NOW, THEREFORE, in consideration of the premises, the mutual provisions contained in the Agreement, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Borrower and Lender hereby amend the Credit Line and the related Promissory Note as follows:   1.The date on which the unpaid principal amount then outstanding plus accrued interest thereon shall be paid in full is changed from July 31, 2013 to July 31, 2014.   2.The requirement that the unpaid principal amount then outstanding plus accrued interest thereon being paid on such date that the Borrower raises at least $2,000,000 in gross proceeds from the sale of any of its equity securities is hereby removed from the Agreement.   3.Except as otherwise expressly provided herein, the Agreement and the obligations of the Borrower thereunder, and each of the rights of and benefits to the Borrower thereunder is, and shall continue to be, in full force and effect and each is hereby ratified and confirmed in all respects   4.This Amendment may be executed in two or more identical counterparts, all of which shall be considered on and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.   IN WITNESS WHEREOF, the Borrower and Lender have caused their respective signature page to this Amendment to be duly executed as of the 2nd day of August, 2013.     ELITE PHARMACEUTICALS, INC.                 By: /s/ Nasrat Hakim   /s/ Jerry Treppel   Nasrat Hakim, Chief Executive Officer   Jerry Treppel              

Exhibit 10.7   INSURANCE AND INDEMNITY AGREEMENT Dated as of June 28, 2005   AMBAC ASSURANCE CORPORATION as Insurer   ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2005-A as Issuer   ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES 2005 LLC as Seller   ALLIANCE LAUNDRY SYSTEMS LLC and   THE BANK OF NEW YORK as Indenture Trustee   Equipment Loan Notes and Receivables Notes TABLE OF CONTENTS             Page ARTICLE I    DEFINITIONS    2 Section 1.1.    Defined Terms    2 Section 1.2.    Other Definitional Provisions    4 ARTICLE II    REPRESENTATIONS, WARRANTIES AND COVENANTS    4 Section 2.1.    Representations and Warranties of Alliance    4 Section 2.2.    Affirmative Covenants of Alliance    5 Section 2.3.    Negative Covenants of Alliance    8 Section 2.4.    Representations and Warranties of the Insurer    9 Section 2.5.    Representations; Warranties and Covenants of the Seller    10 Section 2.6.    Affirmative Covenants of the Seller    10 Section 2.7.    Negative Covenants of the Seller    14 Section 2.8.    Representations and Warranties of the Issuer    14 Section 2.9.    Affirmative Covenants of the Issuer    16 Section 2.10.    Negative Covenants of the Issuer    19 ARTICLE III    THE AMBAC POLICY; REIMBURSEMENT    20 Section 3.1.    Issuance of the Ambac Policy    20 Section 3.2.    Payment of Fees and Premium    21 Section 3.3.    Reimbursement Obligation    22 Section 3.4.    Indemnification    22 Section 3.5.    Payment Procedure    26 Section 3.6.    Subrogation    26 ARTICLE IV    FURTHER AGREEMENTS    27 Section 4.1.    Effective Date; Term of the Insurance Agreement    27 Section 4.2.    Further Assurances and Corrective Instruments    27 Section 4.3.    Obligations Absolute    28 Section 4.4.    Assignments; Reinsurance; Third-Party Rights    29 Section 4.5.    Liability of the Insurer    29 Section 4.6.    Annual Servicing Audit and Certification    30 Section 4.7.    Resignation of Insurer    30 Section 4.8.    Rights and Remedies    30 ARTICLE V    DEFAULTS AND REMEDIES    31 Section 5.1.    Defaults    31 Section 5.2.    Remedies; No Remedy Exclusive    32 Section 5.3.    Waivers    32   -i- TABLE OF CONTENTS (continued)             Page ARTICLE VI    MISCELLANEOUS    32 Section 6.1.    Amendments, Etc.    32 Section 6.2.    Notices    33 Section 6.3.    Severability    34 Section 6.4.    Governing Law    34 Section 6.5.    Consent to Jurisdiction    34 Section 6.6.    Consent of the Insurer    35 Section 6.7.    Counterparts    35 Section 6.8.    Headings    35 Section 6.9.    Trial by Jury Waived    35 Section 6.10.    Limited Liability    36 Section 6.11.    Entire Agreement; Facsimile Signatures    36 Section 6.12.    Indenture Trustee    36 Section 6.13.    Third-Party Beneficiary    36 Section 6.14.    No Proceedings    36 Section 6.15.    Limited Recourse    36 Section 6.16.    No Recourse    36 Section 6.17.    Regulatory Change    37 EXHIBIT A    FORM OF AMBAC POLICY    A-1 EXHIBIT B-1    AGREED UPON PROCEDURES FOR INDEPENDENT PUBLIC ACCOUNTANTS REVIEW OF EQUIPMENT LOANS    B1-1 EXHIBIT B-2    ACCOUNTANTS REVIEW OF RECEIVABLES    B2-1   -ii- INSURANCE AND INDEMNITY AGREEMENT (as it may be amended, modified or supplemented from time to time, this “Insurance Agreement”), dated as of June 28, 2005, by and among AMBAC ASSURANCE CORPORATION, as Insurer (the “Insurer”), ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2005-A, as Issuer (the “Issuer”), ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES 2005 LLC, as Seller (the “Seller”), ALLIANCE LAUNDRY SYSTEMS LLC (“Alliance”), and THE BANK OF NEW YORK, as Indenture Trustee (the “Indenture Trustee”).   PRELIMINARY STATEMENTS   A. The Indenture, dated as of June 28, 2005, relating to Alliance Laundry Equipment Receivables Trust 2005-A Equipment Loan Notes and Receivables Notes, by and among the Issuer and the Indenture Trustee (as it may be amended, modified or supplemented from time to time as set forth therein, the “Indenture” ) provides for, among other things, the issuance of the Notes.   B. The parties hereto desire that the Insurer issue the Ambac Policy to the Indenture Trustee for the benefit of the Noteholders and to, among other things, specify the conditions precedent thereto, the premium in respect thereof and the indemnity, reimbursement, reporting and other obligations of the parties hereto other than the Insurer in consideration thereof.   herein contained, the parties hereto agree as follows:   ARTICLE I   DEFINITIONS   Section 1.1. Defined Terms.   Unless the context clearly requires otherwise, all capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement dated as of June 28, 2005 by and among the Seller, the Issuer and Alliance, as Originator and Servicer (the “Agreement”) or, if not defined therein, in the Ambac Policy described below. All references herein to any agreement that constitutes a Basic Document shall refer to such agreement as of the date hereof without giving effect to any amendment, supplement or other modification thereto made without the Insurer’s consent. For purposes of this Insurance Agreement, the following terms shall have the following meanings:   “Alliance” means Alliance Laundry Systems LLC, a Delaware limited liability company, in its capacity as Originator, Servicer or otherwise.   “Ambac” means Ambac Assurance Corporation, a Wisconsin domiciled stock insurance corporation.   “Ambac Policy” means the Certificate Guaranty Insurance Policy, AB0898BE, together with all endorsements thereto, issued by the Insurer to the Indenture Trustee, for the benefit of the Noteholders, in the form attached as Exhibit A to this Insurance Agreement.   “Closing Date” means June 28, 2005.   “Company Party” has the meaning specified in Section 4.1.   “Documents” means the Basic Documents and any other information relating to the Trust Estate, the Issuer, the Seller, or Alliance furnished to the Insurer by the Issuer, the Seller or Alliance.   2 “Event of Default” has the meaning specified in Section 5.1 hereof.   “Fee Letter” means that certain letter agreement dated as of the date hereof by and among Alliance, the Issuer and Ambac setting forth certain fees and other matters referred to herein, as the same may be amended or supplemented from time to time in accordance therewith and with this Insurance Agreement.   “Indemnified Party” has the meaning specified in Section 3.4 hereof.   “Indemnifying Party” has the meaning specified in Section 3.4 hereof.   “Indenture Trustee” means The Bank of New York, as indenture trustee under the Indenture, and any successor thereto under the Indenture.   “Insurance Agreement” has the meaning specified in the initial paragraph hereof.   “Insurer” means Ambac and any successor thereto, as issuer of the Ambac Policy.   “Investment Company Act” means the Investment Company Act of 1940, including, unless the context otherwise requires, the rules and regulations thereunder, as amended from time to time.   “Issuer” means Alliance Laundry Equipment Receivables Trust 2005-A, a Delaware statutory trust, or any of its successors or permitted assigns as provided for in the Indenture.   “Late Payment Rate” means the lesser of (a) the greater of (i) the per annum rate of interest publicly announced from time to time by Citibank, N.A. as its prime or base lending rate (any change in such rate of interest to be effective on the date such change is announced by Citibank, N.A.), plus 2% per annum and (ii) the then applicable highest rate of interest on the Notes and (b) the maximum rate permissible under applicable usury or similar laws limiting interest rates. The Late Payment Rate shall be computed on the basis of the actual number of days elapsed over a year of 360 days.   “Material Adverse Change” means a “Material Adverse Effect” as such term is defined in the Purchase Agreement.   “Moody’s” means Moody’s Investors Service and any successor thereto.   “Noteholder” means any Holder of Notes, other than a Company Party.   “Note Purchase Agreement” means the Note Purchase Agreement dated as of June 28, 2005 among the Issuer, the Indenture Trustee, Alliance, the Seller, the Note Purchasers (as such term is defined therein) and the other parties named on the signature pages thereto with respect to the offer and sale of the Notes, as amended, modified or supplemented from time to time.   “Notes” means collectively, the Equipment Loan Notes and the Receivables Notes, issued by the Issuer under the Indenture.   “Originator” means Alliance Laundry Systems, LLC, a Delaware limited liability company, as ALS under the Purchase Agreement, and Originator under the Agreement.   “Person” means an individual, joint stock company, trust, unincorporated association, joint venture, corporation, limited liability company, business or owner trust, partnership or other organization or entity (whether governmental or private).   3 “Premium” means the premium payable in accordance with the Fee Letter.   “Purchase Agreement” means the Purchase Agreement dated as of June 28, 2005 between ALS and the Seller with respect to the sale of the Equipment Loans and the Receivables, as amended, modified or supplemented from time to time.   “Rating Agencies” means Moody’s and S&P.   “Securities Act” means the Securities Act of 1933, including, unless the context otherwise requires, the rules and regulations promulgated thereunder, as amended   “Securities Exchange Act” means the Securities Exchange Act of 1934, including, unless the context otherwise requires, the rules and regulations promulgated thereunder, as amended from time to time.   “Seller” means Alliance Laundry Equipment Receivables 2005 LLC, a Delaware limited liability company.   “Servicer” means Alliance Laundry Systems LLC, a Delaware limited liability company, as servicer under the Agreement, and any successor thereto in such capacity.   Companies, Inc., and any successor thereto.   “Transaction” means the transactions contemplated by the Basic Documents.   “Trust Agreement” means, with respect to the Issuer, the Trust Agreement of the Issuer, as amended from time to time.   Section 1.2. Other Definitional Provisions.   used in this Insurance Agreement shall refer to this Insurance Agreement as a whole and not to any particular provision of this Insurance Agreement, and Section, subsection, Schedule and Exhibit references are to this Insurance Agreement unless otherwise specified. The meanings given to terms defined herein The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.”   ARTICLE II     Section 2.1. Representations and Warranties of Alliance.   Alliance hereby makes to and for the benefit of the Insurer each of the representations and warranties made by Alliance, whether in its capacity as Originator, Servicer or otherwise, in each of the Basic Documents to which it is a party, including, but not limited to, Sections 2.11 and 7.01 of the Agreement and Sections 3.1 of the Purchase Agreement. Such representations and warranties are incorporated herein by this reference as if fully set forth herein, and may not be amended except by an amendment complying with the terms of the last sentence of Section 6.1. In addition, Alliance represents and warrants as of the Closing Date as follows:   (a) The offer and sale of the Notes by the Issuer comply in all material respects with all requirements of law, including all registration requirements of applicable securities laws.   4 (b) The Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended. The Issuer is not required to be registered as an “investment company” under the Investment Company Act. Neither the offer nor the sale of the Notes by the Issuer will be in violation of the Securities Act or any other federal or state securities law. Alliance will satisfy any of the information reporting requirements of the Securities Exchange Act arising out of the Transaction to which it, the Issuer or the Seller is subject.   (c) The information or statements contained in the Documents furnished to the Insurer by Alliance, as amended, supplemented or superseded on or prior to the date hereof, taken as a whole, do not, if restated at and as of the date hereof, contain any statement of a material fact or omit to state a material fact necessary to make such information or statements misleading in any material respect.   Section 2.2. Affirmative Covenants of Alliance.   Alliance hereby makes, to and for the benefit of the Insurer, all of the covenants made by Alliance, whether in its capacity as Originator or Servicer, in the Basic Documents to which it is a party, including, but not limited to, Section 3.07 of the Agreement. Such covenants are hereby incorporated herein by this reference as if fully set forth herein, and may not be amended except by an amendment complying with the terms of the last sentence of Section 6.1. In addition, Alliance hereby agrees that during the term of this Insurance Agreement, unless the Insurer shall otherwise expressly consent in writing:   (a) Compliance with Agreements and Applicable Laws. Alliance shall comply with the terms and conditions of and perform its obligations under the Basic Documents to which it is a party and shall comply in all material respects with any law, rule or regulation applicable to it.   (b) Existence. Subject to Section 2.3(c) hereof, it shall maintain its existence as a limited liability company and shall at all times continue to be duly organized under the laws of the State of Delaware and duly qualified and duly authorized (as described in Sections 3.1(b) and (c) of the Purchase Agreement) and shall conduct its business in accordance with the terms of its certificate of formation and operating agreement and shall maintain all licenses, permits, charters and registrations which are material to the conduct of its business.   (c) (Intentionally Omitted).   (d) Notice of Material Events. Alliance shall be obligated promptly to inform the Insurer in writing of the occurrence of any of the following:   (i) the submission of any claim or the initiation of any legal process, litigation or administrative or judicial investigation, or disciplinary proceeding by or against Alliance that would likely result in a Material Adverse Change with respect to Alliance or the promulgation of any proceeding or any proposed or final ruling in connection with any such litigation, investigation or proceeding which would be reasonably likely to result in a Material Adverse Change with respect to Alliance;   (ii) not less than thirty (30) days after the date thereof, any change in the name, location of the principal office, jurisdiction of organization or organization identification number (if any) of Alliance;   5 (iii) within two (2) Business Days of the occurrence thereof, the occurrence of any Event of Default hereunder;   (iv) within two (2) Business Days of the date of Alliance’s knowledge thereof or the date on which Alliance should have, through the exercise of reasonable care and due diligence, known thereof, the occurrence of any Default hereunder; or   (v) the receipt of written notice that (A) any license, permit, charter, registration or approval necessary for the conduct of Alliance’s business is to be, or may be, suspended or revoked and such suspension or revocation would be reasonably likely to result in a Material Adverse Change with respect to Alliance or (B) Alliance is to cease and desist any practice, procedure or policy employed by Alliance in the conduct of its business, and such cessation would be reasonably likely to result in a Material Adverse Change with respect to Alliance.   (e) Access to Records; Discussions with Officers and Accountants. Upon reasonable prior written notice of the Insurer, at any time and in any event at least annually, Alliance shall permit the Insurer or its authorized agents:   (i) to inspect the books and records of Alliance, as they may relate to the Transaction, the Trust Estate, the Notes, or the obligations of Alliance under the Basic Documents;   (ii) to discuss the affairs, finances and accounts of Alliance with the principal executive officer and the principal financial officer of Alliance; and   (iii) through independent public accountants designated by the Insurer, to discuss the affairs, finances and accounts of Alliance with Alliance’s independent accountants, provided that an officer of Alliance shall have the right to be present during such discussions.   Such inspections and discussions shall be conducted during normal business hours at Alliance’s cost and expense, subject to Section 3.3(b) hereof, and shall not unreasonably disrupt the business of Alliance.   (f) Closing Documents. Alliance shall provide or cause to be provided to the Insurer an executed original copy of each Basic Document and a copy of each other document executed in connection with the closing of the Transaction within 30 days of the Closing Date.   (g) Field Examination by Independent Public Accountants. Upon reasonable prior written notice by the Insurer at any time, Alliance shall permit Alliance’s independent public accountants or, if such independent public accountants are not acceptable to the Insurer, independent public accountants designated by the Insurer, annually to conduct a field examination of Alliance pursuant to an agreed upon procedures scope attached in the form of Exhibit B hereto, and in connection therewith shall permit such independent public accountants, without limitation:   (i) to inspect the books and records of Alliance as they may relate to the the Basic Documents;     6 (iii) to discuss the affairs, finances and accounts of Alliance with Alliance’s     (h) Financial Reporting. Alliance shall provide or cause to be provided to the Insurer the following (which, other than management letters and certificates, Alliance may deliver by electronic mail or by telecopy):   (i) Annual and Quarterly Financial Statements. The financial statements required pursuant to Section 5.02(c) of the Agreement, as and when required pursuant to such section.   (ii) Compliance Certificate. Together with the financial statements required under Section 5.02(c) of the Agreement, a compliance certificate signed by Alliance’s principal financial officer stating that to the best of such Person’s knowledge, (i) Alliance is in compliance with its obligations hereunder and under the other Basic Documents, and (ii) no Event of Default, Servicer Default, or Rapid Amortization Event exists hereunder or under the other Basic Documents and no event which but for the lapse of time or the giving of notice, or both, would constitute an Event of Default, Servicer Default, or Rapid Amortization Event exists hereunder or under the other Basic Documents, and if any such event exists, stating the nature and status thereof (including all relevant financial and other information and amounts used in determining whether such Event of Default, Servicer Default, or Rapid Amortization Event exists).   (iii) (Intentionally Omitted).   (iv) S.E.C. Filings and Other Information. Promptly after the filing thereof, copies of all registration statements and annual, quarterly or other regular reports which Alliance or any subsidiary files with the Securities and Exchange Commission or the Ontario Securities Commission.   (i) Credit and Collections Policy. Within 90 days after the end of each fiscal year of Alliance, Alliance shall deliver to the Insurer a complete copy of the Credit and Collection Policy then in effect.   (j) Financial Projections. Projected financial information prepared by Alliance in the ordinary course of business and delivered by Alliance to any of its other lenders, including revisions of previously delivered information, in each case concurrently with delivery thereof to such other lenders.   (k) Public Debt Ratings. Promptly, but in any event within 15 days after the date of any upgrade in Alliance’s public debt ratings and 2 Business Days of any downgrade in such ratings, Alliance shall deliver to the Insurer a written certification of Alliance’s public debt ratings after giving effect to such change.   (l) Trigger Events. Alliance shall include in the Servicer’s Certificate delivered pursuant to Section 3.10 of the Agreement a certification signed by knowledge, no Servicer Default, Rapid Amortization Event or Event of Default (hereunder or under the Indenture), or any event with notice or lapse of time would constitute any of the same, has occurred and is continuing.   7 (m) Exemption from Securities Act Registration. Alliance shall take all actions necessary to exempt the sale of the Notes from registration under the Securities Act and under any applicable securities laws of any state of the United States where any Notes may be offered or sold by the Issuer.   (n) Operation of the Issuer. Alliance agrees that (i) it shall not take any steps or actions that are inconsistent with the obligations of the Seller and the Issuer under Sections 2.6(i) and 2.9(i), respectively, (ii) at all times during the effectiveness of this Insurance Agreement, except as otherwise permitted by the Agreement, it shall be the sole record and beneficial owner of all of the outstanding equity interests of the Seller, free and clear of all liens and other encumbrances, and (iii) the Seller shall be the sole record and beneficial owner of all of the outstanding equity interests of the Issuer, free and clear of all liens and other encumbrances.   (o) Notices and Information Provided Under the Purchase Agreement. Without limiting any of the foregoing, Alliance shall provide the Insurer with copies of all notices and information delivered pursuant to Section 5.2(d) and (e) of the Purchase Agreement on the same date as such items are due to be delivered under such section of the Purchase Agreement.   (p) Other Information. Alliance shall provide to the Insurer such other information (including non-financial information) in respect of the Loans, the Transaction and the Basic Documents and such other financial or operating information in respect of Alliance, the Seller, the Issuer or any of their Affiliates, in each case, which the Insurer may from time to time reasonably request.   Section 2.3. Negative Covenants of Alliance.   Alliance hereby agrees that during the term of this Insurance Agreement, unless the Insurer shall otherwise expressly consent in writing:   (a) Impairment of Rights. Alliance shall not take any action, or fail to take any action, if such action or failure to take action (x) is reasonably likely to result in a Material Adverse Change or (y) is reasonably likely to interfere with the enforcement of any rights of the Insurer under or with respect to any of the Basic Documents. Alliance shall give the Insurer written notice of any such action or failure to act promptly prior to the date of consummation of such action or failure to act. Alliance shall furnish to the Insurer all information requested by it that is reasonably necessary to determine compliance with this paragraph.   (b) Amendments, Etc. Alliance shall not modify, amend or waive, or consent to any modification or amendment of, any of the terms, provisions or conditions of the Basic Documents to which it is a party without the prior written consent of the Insurer thereto, but excluding any amendment to the Basic Documents required by law, provided that Alliance shall provide the Insurer with reasonable prior written notice of any such amendment and a copy thereof.   (c) Limitation on Mergers, Etc. Except as expressly permitted by the Agreement, Alliance shall not consolidate with or merge with or into any Person or transfer all or substantially all of its assets to any Person (each, a “Combination Transaction”) or liquidate or dissolve. Without limiting the foregoing, no Combination Transaction shall be consummated unless Alliance shall have delivered to the Insurer (a) an Officer’s Certificate reasonably satisfactory to it, stating that such consolidation, conversion, merger, or succession and such agreement of assumption comply with this Section and the other Basic Documents and that all conditions precedent, if any, provided for in this Agreement and the other Basic Documents relating to such Combination Transaction have been complied with, and (b) an opinion of counsel, reasonably satisfactory to it, stating that, in the opinion of such counsel, (1) the agreement of assumption is the valid and binding obligation of the parties thereto and effective to accomplish the assumption of liabilities contemplated therein, (2) either (A) all financing statements and   8 continuation statements and amendments thereto have been executed and filed that are necessary fully to preserve and protect the interest of the Issuer, the Indenture Trustee, the Insurer and the Noteholders in the Loans and the Receivables and reciting the details of such filings, or (B) no such action shall be necessary to preserve and protect such interest; in either case, such opinion shall cover the matters covered in the opinion delivered pursuant to Section 3.6(a) of the Indenture, taking into account changes of law, and (3) after giving effect to such merger or consolidation, Alliance (or its successor) would not be substantively consolidated with the Seller or the Issuer in the event of a bankruptcy of Alliance or its successor.   (d) Change in Lockbox Processor. Alliance shall not permit a change in the Lockbox Account or the lockbox processor designated in the Lockbox Agreement without the prior written consent of the Insurer.   Section 2.4. Representations and Warranties of the Insurer.   The Insurer represents and warrants to the Indenture Trustee (on behalf of the Noteholders), the Issuer, the Seller and Alliance as follows:   (a) Organization and Licensing. The Insurer is a stock insurance corporation State of Wisconsin.   (b) Corporate Power. The Insurer has the corporate power and authority to issue the Ambac Policy and execute and deliver this Insurance Agreement and to perform all of its obligations hereunder and thereunder.   (c) Authorization; Approvals. All proceedings legally required for the issuance of the Ambac Policy and the execution, delivery and performance of this Insurance Agreement have been taken and all licenses, orders, consents or other authorizations or approvals of the Insurer’s Board of Directors or stockholders or any governmental boards or bodies legally required for the enforceability of the Ambac Policy have been obtained or are not material to the enforceability of the Ambac Policy.   (d) Enforceability. The Ambac Policy, when issued, will constitute, and this Insurance Agreement constitutes, a legal, valid and binding obligation of the Insurer, enforceable in accordance with its terms, subject to insolvency, reorganization, moratorium, receivership and other similar laws affecting creditors’ rights generally and by general principles of equity and subject to principles of public policy limiting the right to enforce the indemnification provisions contained therein and herein, insofar as such provisions relate to indemnification for liabilities arising under federal securities laws.   (e) No Litigation. There are no actions, suits, proceedings or investigations pending or, to the best of the Insurer’s knowledge, threatened against it at law or in equity or before or by any court, governmental agency, board or commission or any arbitrator which, if decided adversely, would materially and adversely affect its ability to perform its obligations under the Ambac Policy or this Insurance Agreement.   (f) No Conflict. The execution by the Insurer of this Insurance Agreement will not, and the satisfaction of the terms hereof will not, conflict with or result in a breach of any of the terms, conditions or provisions of the Certificate of Incorporation or By-Laws of the Insurer, or any restriction contained in any contract, agreement or instrument to which the Insurer is a party or by which it is bound or constitute a default under any of the foregoing which would materially and adversely affect its ability to perform its obligations under the Ambac Policy or this Insurance Agreement.   9 Section 2.5. Representations; Warranties and Covenants of the Seller.   The Seller hereby makes to and for the benefit of the Insurer each of the representations, warranties and covenants made by the Seller in the Basic Documents to which it is a party, including, but not limited to, Section 2.11 and 7.01 of the Agreement. Such representations, warranties and covenants are incorporated herein by this reference as if fully set forth herein, and may not be amended except by an amendment complying with the terms of the last sentence of Section 6.1. In addition, the Seller represents and warrants as of the   (a) The offer and sale of the Notes by the Issuer complies in all material   any other federal or state securities law. The Seller will satisfy any of the the Transaction to which it is subject.   Insurer by Seller, as amended, supplemented or superseded on or prior to the date hereof, taken as a whole, does not, if restated at and as of the date hereof, contain any statement of a material fact or omit to state a material fact necessary to make such information or statements misleading in any material respect.   (d) The Seller is solvent and will not be rendered insolvent by the Transaction and, after giving effect to the Transaction, the Seller will not be left with an unreasonably small amount of capital with which to engage in its business, and the Seller does not intend to incur, nor believes that it has incurred, debts beyond its ability to pay as they mature. The Seller does not contemplate the commencement of insolvency, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official with respect to it or any of its assets.   (e) The principal place of business of the Seller is Ripon, Wisconsin and its books and records with respect to the Loans are located at Wilmington, Delaware, Ripon, Wisconsin and Chicago, Illinois.   Section 2.6. Affirmative Covenants of the Seller.   The Seller hereby makes, to and for the benefit of the Insurer, all of the covenants of the Seller set forth in the Basic Documents to which it is a party. Such covenants are incorporated herein by this reference, and may not be amended except by an amendment complying with the terms of the last sentence of Section 6.1. In addition, the Seller hereby agrees that during the term of this Insurance Agreement, unless the Insurer shall otherwise expressly consent in writing:   (a) Compliance with Agreements and Applicable Laws. It shall comply with the terms and conditions of and perform its obligations under the Basic Documents to which it is a party and shall comply with all material requirements of any law,   (b) Existence. It shall maintain its existence as a limited liability company and shall at all times continue to be duly organized under the laws of the State of Delaware and duly qualified and duly authorized (as described in Sections 3.2(b) and (c) of the Purchase Agreement) and shall conduct its business in accordance with the terms of its certificate of formation and operating agreement and shall maintain all licenses, permits, charters and registrations which are material to the conduct of its business.   10 (c) Access to Records; Discussions with Officers and Accountants. Upon least annually, the Seller shall permit the Insurer or its authorized agents:   (i) to inspect the books and records of the Seller;   (ii) to discuss the affairs, finances and accounts of the Seller with the principal executive officer and the principal operating officer of the Seller; and   discuss the affairs, finances and accounts of the Seller with the Seller’s independent accountants, provided that an officer of the Seller shall have the   at the cost and expense of the Seller, subject to Section 3.3(b) hereof, and shall not unreasonably disrupt the business of the Seller.   (d) Notice of Material Events. The Seller shall be obligated promptly to inform   proceeding by or against the Seller that would likely result in a Material Adverse Change with respect to the Seller or the promulgation of any proceeding or any proposed or final ruling in connection with any such litigation, investigation or proceeding which would be reasonably likely to result in a Material Adverse Change with respect to the Seller;   organization identification number (if any) of the Seller;   a Default or an Event of Default hereunder in respect of the Seller;   (iv) the commencement of any proceedings by or against the Seller under any applicable reorganization, liquidation, rehabilitation, insolvency or other similar law now or hereafter in effect or of any proceeding in which a receiver, liquidator, conservator, trustee or similar official shall have been, or may be, appointed or requested for such Seller or any of its assets; or   registration or approval necessary for the conduct of the Seller’s business is to be, or may be, suspended or revoked and such suspension or revocation would be reasonably likely to result in a Material Adverse Change with respect to the Seller or (B) the Seller is to cease and desist any practice, procedure or policy employed by the Seller in the conduct of its business, and such cessation to the Seller.   (e) Field Examination by Independent Public Accountants. Upon the prior written notice of the Insurer at any time, the Seller shall permit the independent public accountants of the Seller or, if such independent public accountants are not acceptable to the Insurer, independent public accountants   11 designated by the Insurer, annually to conduct a field examination of the Seller pursuant to an agreed upon procedures scope attached in the form of Exhibit B hereto, and in connection therewith shall permit such independent public accountants without limitation:   (i) to inspect the books and records of the Seller; and   Seller’s independent accountants, provided that an officer of the Seller shall have the right to be present during such discussions.     (f) Exemption from Securities Act Registration. The Seller shall take all actions necessary to exempt the sale of the Notes from registration under the Securities Act and under any applicable securities laws of any state of the United States where Notes may be offered or sold by the Issuer.   (g) Financial Reporting. To the extent the Seller shall otherwise be preparing the same for purposes other than the preparation of the consolidated financial statements of ALH and its subsidiaries, the Seller shall provide or cause to be provided to the Insurer, as soon as practicable and in any event within 90 days after the end of each fiscal year of the Seller annual balance sheets of the Seller as at the end of such fiscal year and the notes thereto, and the related statements of income and cash flows and the respective notes thereto for such fiscal year certified by the principal financial officer of the Seller.   (h) Other Information. The Seller shall provide to the Insurer such other information in respect of the Seller, in each case, which the Insurer may from   (i) Operation of the Seller. The Seller shall:   (1) be a limited purpose, Delaware limited liability company whose primary activities are restricted pursuant to its certificate of formation and operating agreement;   (2) not engage in any action that would cause the separate legal identity of the Seller not to be respected, including, without limitation, (a) holding itself out as being liable for the debts of any other party or (b) acting other than through its duly authorized agents;   (3) not be involved in the day-to-day management of Alliance;   (4) not incur, assume or guarantee any indebtedness except for such indebtedness as may be incurred by the Seller in connection with the issuance of the Notes or as otherwise permitted by the Insurer;   (5) act solely in its own name in the conduct of its business, including business correspondence and other communications, and shall conduct its   12 business so as not to mislead others as to the identity of the entity with which they are concerned;   (6) maintain separate company records and books of account, deposit accounts (and funds therein) or other assets and shall not commingle its deposit accounts (and funds therein) with the deposit accounts (and funds therein) of any entity;   (7) not engage in any business or activity other than in connection with or relating to its certificate of formation and operating agreement;   (8) not form, or cause to be formed, any subsidiaries (other than the Issuer);   (9) comply with all restrictions and covenants in, and shall not fail to comply with the limited liability company formalities established in, its certificate of formation and operating agreement;   (10) manage its day-to-day business without the involvement of Alliance except pursuant to its obligations as Servicer;   (11) maintain a separate office from that of Alliance, which may be located on Alliance’s premises;   (12) not act as an agent of Alliance;   (13) maintain at all times two independent managers as required by its articles of organization and operating agreement;   (14) ensure that, to the extent that it shares the same officers or other employees as any of its Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees;   (15) ensure that, to the extent that it jointly contracts with any of its stockholders or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in doing so shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Seller contracts or does business with vendors or service providers when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs. All material transactions between the Seller and its Affiliates shall only be on an arm’s-length basis;   (16) require that all full-time employees of the Seller identify themselves as such and not as employees of Alliance (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as the Seller’s employees); and   13 (17) compensate all employees, consultants and agents directly, from the Seller’s bank accounts, for services provided to the Seller by such employees, consultants and agents, and, to the extent any employee, consultant or agent of the Seller is also an employee, consultant or agent of Alliance, allocate the compensation of such employee, consultant or agent between the Seller and Alliance on a basis which reflects the services rendered to the Seller and Alliance.   Section 2.7. Negative Covenants of the Seller.   The Seller hereby agrees that during the term of this Insurance Agreement, unless the Insurer shall otherwise expressly consent in writing:   (a) Impairment of Rights. The Seller shall not take any action, or fail to take of the Basic Documents. The Seller shall give the Insurer written notice of any action or failure to act. The Seller shall furnish to the Insurer all information requested by it that is reasonably necessary to determine compliance with this paragraph.   (b) Amendments, Etc. The Seller shall not modify, amend or waive, or consent to any modification, amendment or waiver of, any of the terms, provisions or conditions of the Basic Documents to which it is a party or its organizational documents, including, without limitation, its certificate of formation and operating agreement, without the prior written consent of the Insurer thereto, but excluding any amendment to the Basic Documents required by law, provided that the Seller shall provide the Insurer with prior written notice of any such amendment and a copy thereof.   (c) Limitation on Mergers, Etc. The Seller shall not consolidate with or merge with or into any Person or transfer all or substantially all of its assets to any Person or liquidate or dissolve except as expressly permitted in the Agreement.   (d) Operating Expenses. The Seller shall not permit Alliance to pay any of the Seller’s operating expenses except pursuant to allocation arrangements that comply with the requirements of Section 2.6(i)(17) above.   (e) Certain Other Limitations. The Seller shall not permit the Seller to be named as an insured on an insurance policy held by another Company Party or covering the property of any other Company Party, except to the extent the Seller shall bear the expenses thereof, or enter into an agreement with the holder of such policy whereby in the event of a loss in connection with such property not owned by the Seller, proceeds are paid to the Seller.   Section 2.8. Representations and Warranties of the Issuer.   The Issuer hereby makes, to and for the benefit of the Insurer, each of the representations and warranties made by the Issuer in the Basic Documents to which it is a party. Such representations and warranties are incorporated herein an amendment complying with the terms of Section 6.1. In addition, the Issuer represents and warrants as of the Closing Date as follows:   (a) Due Organization and Qualification. The Issuer is a Delaware business trust, Delaware. The Issuer is duly qualified to do business, is in good standing and has obtained all necessary licenses, permits, charters, registrations   14 and approvals (together, “approvals”) necessary for the conduct of its business as currently conducted and as described in the Offering Document and the performance of its obligations under the Basic Documents in each jurisdiction in which the failure to be so qualified or to obtain such approvals would render any Basic Document unenforceable in any respect or would have a material adverse effect upon the Transaction.   (b) Power and Authority. The Issuer has all necessary Delaware business trust power and authority to conduct its business as currently conducted and as described in the Offering Document, to execute, deliver and perform its obligations under the Basic Documents and to consummate the Transaction.   (c) Due Authorization. The execution, delivery and performance of the Basic Documents by the Issuer has been duly authorized by all necessary Delaware business trust action and do not require any additional approvals or consents, or other action by or any notice to or filing with any Person, including any governmental entity, which have not previously been obtained.   (d) Noncontravention. The execution and delivery by the Issuer of the Basic Documents to which it is a party, the consummation of the Transaction and the satisfaction of the terms and conditions of the Basic Documents do not and will not:   (i) conflict with or result in any breach or violation of any provision of the certificate of trust or Trust Agreement of the Issuer or any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award currently in effect having applicability to either the Issuer or any of its properties, including regulations issued by any administrative agency or other governmental authority having supervisory powers over the Issuer;   (ii) constitute a default by the Issuer under, result in the acceleration of any obligation under, or breach any material provision of any loan agreement, mortgage, indenture or other agreement or instrument to which the Issuer either is a party or by which any of its properties are or may be bound or affected; or   (iii) result in or require the creation of any lien upon or in respect of any assets of the Issuer, except as otherwise expressly contemplated by the Basic Documents.   (e) Legal Proceedings. There is no action, proceeding or investigation by or before any court, governmental or administrative agency or arbitrator against or affecting the Issuer, any properties or rights of the Issuer or the Trust Estate pending or, to the Issuer’s knowledge, threatened, which, in any case, if decided adversely to the Issuer, is reasonably likely to result in a Material Adverse Change with respect to the Issuer.   (f) Valid and Binding Obligations. The Basic Documents constitute the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their respective terms, except as such enforceability may be limited by insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equitable principles. The Notes, when executed, authenticated and delivered in accordance with the Indenture, will be validly issued and outstanding and entitled to the benefits of the Indenture.   (g) Compliance with Law, Etc. No practice, procedure or policy employed, or proposed to be employed, by the Issuer in the conduct of its business violates any law, regulation, judgment, agreement, order or decree applicable to the Issuer, that, if enforced, is reasonably likely to result in a Material Adverse Change with respect to the Issuer.   15 (h) Accuracy of Information. The information or statements contained in the Documents furnished to the Insurer by the Issuer, as amended, supplemented or superseded on or prior to the date hereof, taken as a whole, does not, if restated at and as of the date hereof, contain any statement of a material fact or omit to state a material fact necessary to make such information or statements misleading in any material respect.   (i) Compliance with Securities Laws. The offer and sale of the Notes by the Issuer complies in all material respects with all requirements of law, including all registration requirements of applicable securities laws. Neither the offer nor the sale of the Notes by the Issuer has been or will be in violation of the Securities Act or any other federal or state securities laws. The Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended. The Issuer is not required to be registered as an “investment company” under the Investment Company Act.   (j) Solvency; Fraudulent Conveyance. The Issuer is solvent and will not be rendered insolvent by the Transaction and, after giving effect to the Transaction, the Issuer will not be left with an unreasonably small amount of capital with which to engage in its business, and the Issuer does not intend to incur, nor believes that it has incurred, debts beyond its ability to pay as they mature. The Issuer does not contemplate the commencement of insolvency, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official with respect to it or any of its assets. The Issuer is not pledging the Trust Estate under the Indenture with any intent to hinder, delay or defraud its creditors.   (k) Principal Place of Business. The principal place of business of the Issuer is Wilmington, Delaware and its books and records with respect to the Loans are located at Wilmington, Delaware, Ripon, Wisconsin and Chicago, Illinois.   Section 2.9. Affirmative Covenants of the Issuer.   covenants of the Issuer set forth in the Basic Documents to which it is a party, including, but not limited to, Article III of the Indenture. Such covenants are incorporated herein by this reference, and may not be amended except by an hereby agrees that during the term of this Insurance Agreement, unless the Insurer shall otherwise expressly consent in writing:     (b) Existence. It shall maintain its existence as a business trust and shall at all times continue to be duly organized under the laws of the State of Delaware and duly qualified and duly authorized (as described in subsections 2.8(a), (b) and (c) hereof) and shall conduct its business in accordance with the terms of its certificate of trust and Trust Agreement and shall conduct its business in accordance with the terms of its trust agreement and shall maintain all licenses, permits, charters and registrations which are material to the conduct of its business.   reasonable prior written notice of the Insurer, at any time and any event at least annually, the Issuer shall permit the Insurer or its authorized agents:   (i) to inspect the books and records of the Issuer;   16 (ii) to discuss the affairs, finances and accounts of the Issuer with the principal executive officer and the principal financial officer of the Issuer; and   discuss the affairs, finances and accounts of the Issuer with the Issuer’s independent accountants, provided that an officer of the Issuer and an officer of Alliance shall have the right to be present during such discussions.   at the cost and expense of the Issuer, subject to Section 3.3(b) hereof, and shall not unreasonably disrupt the business of the Issuer.   (d) Notice of Material Events. The Issuer shall be obligated promptly to inform   proceeding by or against the Issuer that would likely result in a Material Adverse Change with respect to the Issuer or the promulgation of any proceeding Material Adverse Change with respect to the Issuer;   organization identification number (if any) of the Issuer;   (iii) the occurrence of an Event of Default hereunder in respect of the Issuer;   (iv) upon the Issuer’s knowledge thereof or the date on which the Issuer should have, through the exercise of reasonable care and due diligence, known thereof, the occurrence of any Default hereunder in respect of the Issuer;   (v) the commencement of any proceedings by or against the Issuer under any appointed or requested for such Issuer or any of its assets; or   (vi) the receipt of written notice that (A) any license, permit, charter, registration or approval necessary for the conduct of the Issuer’s business is be reasonably likely to result in a Material Adverse Change with respect to such Issuer or (B) the Issuer is to cease and desist any practice, procedure or policy employed by the Issuer in the conduct of its business, and such cessation to such Issuer.   (e) Field Examination by Independent Public Accountants. Upon reasonable prior written notice of the Insurer at any time, the Issuer shall permit the independent public accountants of the Issuer or, if such independent public accountants are not acceptable to the Insurer, independent public accountants designated by the Insurer, annually to conduct a field examination of the Issuer accountants without limitation:   (i) to inspect the books and records of the Issuer; and   17 Issuer’s independent accountants, provided that an officer of the Issuer shall     (f) Exemption from Securities Act Registration. The Issuer shall take all   (g) Financial Reporting. To the extent the Issuer shall otherwise be preparing statements of ALH and its subsidiaries, the Issuer shall provide or cause to be after the end of each fiscal year of the Issuer annual balance sheets of the Issuer as at the end of such fiscal year and the notes thereto, and the related fiscal year certified by the principal financial officer of the Issuer.   (h) Other Information. The Issuer shall provide to the Insurer such other information in respect of the Issuer, in each case, which the Insurer may from   (i) Operation of the Issuer. The Issuer shall:   (1) be a Delaware business trust whose primary activities are restricted pursuant to its Trust Agreement:   (2) not be involved in the day-to-day management of Alliance;   (3) not incur, assume or guarantee any indebtedness except for such indebtedness as may be incurred by the Issuer in connection with the issuance of the Notes or   (4) not commingle its deposit accounts (and funds therein) or other assets with the deposit accounts (and funds therein) or other assets of any entity other than the Seller;   (5) manage its day-to-day business without the involvement of Alliance except   (6) maintain a separate office from that of Alliance;   (7) not act as an agent of Alliance;   (8) not form, or cause to be formed, any subsidiaries;   18 (9) act solely in its own name or in the name of the Seller in the conduct of its business, including business correspondence and other communications, and shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned;   (10) ensure that, to the extent that it shares the same officers or other employees as any of its Affiliates (other than the Seller), the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees;   (11) ensure that, to the extent that it jointly contracts with any of its stockholders or Affiliates (other than the Seller) to do business with vendors or service providers or to share overhead expenses, the costs incurred in doing so shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Issuer contracts or does business with vendors or service providers when the goods and services provided are partially for the benefit of any other Person (other than the Seller), the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs. All material transactions between the Seller and its Affiliates (other than the Seller) shall only be on an arm’s-length basis;   (12) require that all full-time employees of the Issuer identify themselves as identifying such employees as the Issuer’s employees); and   (13) compensate all employees, consultants and agents directly, from the Issuer’s bank accounts, for services provided to the Issuer by such employees, the Issuer is also an employee, consultant or agent of Alliance, allocate the compensation of such employee, consultant or agent between the Issuer and Alliance on a basis which reflects the services rendered to the Issuer and Alliance.   Section 2.10. Negative Covenants of the Issuer.   The Issuer hereby agrees that during the term of this Insurance Agreement,   (a) Impairment of Rights. The Issuer shall not take any action, or fail to take of the Basic Documents. The Issuer shall give the Insurer written notice of any action or failure to act. The Issuer shall furnish to the Insurer all with this paragraph.   (b) Amendments, Etc. The Issuer shall not modify, amend or waive, or consent to conditions of the Basic Documents to which it is a party, or any of its organization documents, including, without limitation, its trust agreement and certificate of trust and Trust Agreement, without the prior written consent of the Insurer   19 thereto, but excluding any amendment to the Basic Documents required by law, provided that the Issuer shall provide the Insurer with prior written notice of any such amendment and a copy thereof.   (c) Limitation on Mergers, Etc. The Issuer shall not consolidate with or merge any Person or liquidate or dissolve.   (d) Operating Expenses. The Issuer shall not permit Alliance to pay any of the Issuer’s operating expenses except pursuant to allocation arrangements that comply with the requirements of Section 2.9(i)(13) above.   (e) Certain Other Limitations. The Issuer shall not permit the Issuer to be Issuer shall bear the expenses thereof, or enter into an agreement with the property not owned by the Issuer, proceeds are paid to the Issuer.   ARTICLE III     Section 3.1. Issuance of the Ambac Policy.   The Insurer agrees to issue the Ambac Policy on the Closing Date subject to satisfaction of the conditions precedent set forth below:   (a) Payment of Initial Premium and Expenses. The applicable parties shall have been paid their related fees and expenses payable in accordance with Section 3.2;   (b) Documents. The conditions to consummation of the transactions set forth in Section 4.1 and 4.2 of the Purchase Agreement shall have been satisfied;   (c) Credit and Collection Policy. The Insurer shall have received a complete copy of the Credit and Collection Policy then in effect certified by the principal financial officer of Alliance;   (d) Representations and Warranties; Certificate. The representations and warranties of Alliance, the Seller and the Issuer set forth or incorporated by reference in this Insurance Agreement shall be true and correct on and as of the Closing Date as if made on the Closing Date, and the Insurer shall have received a certificate of appropriate officers of Alliance, the Seller and the Issuer to that effect;   (e) No Litigation, Etc. No suit, action or other proceeding, investigation or injunction, or final judgment relating thereto, shall be pending or, to such party’s knowledge, threatened before any court, governmental or administrative agency or arbitrator in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with any of the Basic Documents or the consummation of the Transaction;   (f) Legality. No statute, rule, regulation or order shall have been enacted, entered or deemed applicable by any government or governmental or administrative agency or court that would make the Transaction illegal or otherwise prevent the consummation thereof;   (g) No Event of Default. No Event of Default or Rapid Amortization Event shall have occurred;   20 (h) Satisfaction of Conditions of the Note Purchase Agreement. All conditions in the Note Purchase Agreement relating to the Note Purchasers’ obligation to purchase the Notes shall have been fulfilled to the satisfaction of the Insurer, with such satisfaction deemed to have occurred upon issuance of the Ambac Policy. The Insurer shall have received copies of each of the documents, and shall be entitled to rely on each of the documents, required to be delivered to any Note Purchasers pursuant to the Note Purchase Agreement, including, without limitation, the items described in Section 3.1(e) of the Note Purchase Agreement (other than the opinion of counsel to the Insurer);   (i) Issuance of Ratings. The Insurer shall have received confirmation that the Notes would be rated BBB by S&P and an Baa2 by Moody’s without taking into account the Ambac Policy and shall have received copies of any opinions of counsel delivered to the Rating Agencies, such opinions being in form and substance satisfactory to and addressed to the Insurer;   (j) Approvals, Etc. The Insurer shall have received true and correct copies of all approvals, licenses and consents, if any, required in connection with the Transaction;   (k) Credit Agreement. The Insurer shall have received a copy of the Credit Agreement (including all amendments, supplements or other modifications thereto as of the Closing Date) certified by a Responsible Officer of Alliance.   (l) Additional Items. The Insurer shall have received such other documents, instruments, approvals or opinions in form and substance reasonably satisfactory to the Insurer as shall be reasonably requested by the Insurer, including evidence reasonably satisfactory to the Insurer that the conditions precedent, if any, in the Basic Documents have been satisfied; and   (m) Satisfactory Documentation. The Insurer and its counsel shall have determined that all documents, the Notes and opinions to be delivered in connection with the Notes conform to the terms of the Indenture and this Insurance Agreement.   Section 3.2. Payment of Fees and Premium.   (a) Legal and Accounting Fees. Seller shall pay or cause to be paid on the Closing Date all reasonable, out-of-pocket (i.e., excluding internal legal or accounting expenses) and documented legal fees, auditors’ fees and disbursements incurred by the Insurer in connection with the issuance of the Ambac Policy and the other Basic Documents through the Closing Date. Additional fees of the Insurer’s counsel or auditors payable in connection with the Basic Documents incurred after the Closing Date shall be paid by Alliance as provided in Section 3.3 below.   (b) Rating Agency Fees. Seller shall promptly pay the initial fees of the Rating Agencies with respect to the Notes and the transactions contemplated hereby following receipt of a statement with respect thereto. Alliance shall pay or cause to be paid any subsequent fees of the Rating Agencies with respect to, and directly allocable to, the Notes to the extent that such fees and expenses result from actions of the Rating Agencies that are requested by Alliance. The Insurer shall not be responsible for any fees or expenses of the Rating Agencies. The fees for any other rating agency shall be paid by the party requesting such other agency’s rating.   (c) Premium. In consideration of the issuance by the Insurer of the Ambac Policy, the Issuer shall pay or cause to be paid the Premiums to the Insurer as set forth in the Fee Letter in accordance with and from the funds specified by Section 8.2 of the Indenture, commencing on the day the Ambac Policy is issued, until the Ambac Policy has terminated in accordance with its terms. The Premium paid under the Indenture shall be nonrefundable without regard to whether any Notice (as   21 defined in the Ambac Policy) is delivered to the Insurer requiring the Insurer to make any payment under the Ambac Policy or any other circumstances relating to the Notes or provision being made for payment of the Notes prior to maturity.   Section 3.3. Reimbursement Obligation.   (a) The Issuer agrees absolutely and unconditionally to reimburse the Insurer for any amounts paid by the Insurer under the Ambac Policy, plus the amount of any other due and payable and unpaid Reimbursement Amounts (as defined in the Ambac Policy) which reimbursement shall be due and payable on the date that any such amount is paid thereunder only from amounts available for such payment under the Indenture, in an amount equal to the amounts so paid and all amounts previously paid that remain unreimbursed, together (without duplication) with interest on any and all amounts remaining unreimbursed (to the extent permitted by law, if in respect of any unreimbursed amounts representing interest) from the date such amounts became due until paid in full (after as well as before judgment), at a rate of interest equal to the Late Payment Rate.   (b) Alliance agrees to pay to the Insurer, promptly, but in no event later than 30 days after receipt of an invoice, as follows: any and all documented out-of-pocket (e.g., excluding internal legal or accounting expenses), charges, fees, costs and expenses that the Insurer may reasonably pay or incur, including reasonable attorneys’ and accountants’ fees and expenses, in connection with (i) the enforcement, defense or preservation of any rights in respect of any of the Basic Documents, including defending, monitoring or participating in any litigation or proceeding (including any insolvency proceeding in respect of any Transaction participant or any affiliate thereof) relating to any of the Basic Documents, any party to any of the Basic Documents (in its capacity as such a party) or the Transaction, including without limitation the costs and fees of inspections by the Insurer or audits or field examinations by accountants, or (ii) any amendment, waiver or other similar action with respect to, or related to, any Basic Document, whether or not executed or completed. Notwithstanding anything in this Agreement to the contrary, provided that no Event of Default, Rapid Amortization Event or Servicer Default has occurred and is continuing, the reimbursable costs and expenses of the Insurer pursuant to Section 2.2(e), 2.2(h), 2.6(c), 2.6(e), 2.9(c) and 2.9(e) shall not exceed $25,000 in any period of twelve consecutive months.   (c) Each of Alliance, the Seller and the Issuer agrees to pay to the party to whom such amounts are owed on demand interest at the Late Payment Rate on any and all amounts described in Sections 3.3(b) and 3.4 after the date such amounts become due and payable until payment thereof in full.   Section 3.4. Indemnification.   (a) In addition to any and all of the Insurer’s rights of reimbursement, indemnification or subrogation, and to any other rights of the Insurer pursuant hereto or under law or in equity, Alliance agrees to pay, and to protect, indemnify and save harmless, the Insurer and its officers, directors, shareholders, employees, agents and each Person, if any, who controls the Insurer within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act from and against, any and all claims, losses, liabilities (including penalties), actions, suits, judgments, demands, damages, costs or expenses (including reasonable fees and expenses of attorneys, consultants and auditors and reasonable costs of investigations) of any nature arising out of or relating to the transactions contemplated by the Basic Documents by reason of:   (i) any statement, omission or action in connection with the offering, issuance, sale or delivery of any of the Notes;   22 (ii) the negligence, bad faith, willful misconduct, misfeasance, malfeasance or theft committed by any director, officer, employee or agent of Alliance in connection with the Transaction;   (iii) the violation by Alliance of any domestic or foreign law, rule or regulation, or any judgment, order or decree applicable to them;   (iv) the breach by Alliance of any representation, warranty or covenant under any of the Basic Documents;   (v) claims of third parties (other than parties to the Basic Documents unless arising at a time when a Rapid Amortization Event exists) arising from the commingling of Collections by the Issuer, the Seller or the Servicer at any time with its other funds or the funds of any other Person;   (vi) claims of third parties (other than parties to the Basic Documents unless arising at a time when a Rapid Amortization Event exists) relating to products liability, lender liability or any third party claim arising from the transactions contemplated by any of the Basic Documents, except (A) to the extent that any such claim, damage, loss liability, cost or expense shall be caused by the bad faith, willful misconduct or gross negligence of the Insurer in performing its obligations under this Insurance Agreement, (B) for recourse for the payment of principal of or interest on, or other amounts due in respect of, the Equipment Loan Notes as a result of nonpayment by Obligors for credit reasons on the accounts of the related Equipment Loans, (C) for recourse for the payment of principal of or interest on, or other amounts due in respect of, the Receivables Notes as a result of nonpayment by Obligors for credit reasons on the accounts of the related Receivables or (D) to the extent the same constitute consequential, special or punitive damages;   (vii) any increase in the cost to the Insurer of issuing or maintaining the Ambac Policy or of entering into or performing its obligations under this Insurance Agreement (including the reduction of any premium, fee or other sum received or receivable hereunder) after the date hereof due to either (x) the introduction of or any change in or to the interpretation of any law or regulation by any state insurance regulator or other governmental authority that promulgated or administers compliance with such law or regulation (other than laws and regulations with respect to taxes imposed on the overall net income of the Insurer by the United States of America) or (y) the compliance with any guideline or request from any state insurance regulator or other governmental authority, rating agency or similar agency (whether or not having the force of law), and taking into account the Insurer’s obligations under the other Documents and otherwise in connection with Alliance’s asset-supported financing business. (A certificate setting forth in reasonable detail the amount of such increased cost submitted to Alliance by the Insurer shall be conclusive and binding for all purposes, absent manifest error.); or   (viii) any determination by the Insurer that compliance with any law or regulation or any guideline or request or any written interpretation from any state insurance regulator or other governmental authority, rating agency or similar agency (whether or not having the force of law) which is introduced, implemented or received by the Insurer after the date hereof, affects or would affect capital adequacy or the amount of capital required or expected to be maintained by the Insurer or any corporation controlling the Insurer and that the amount of such capital is increased by or based upon the obligations of the Insurer under either the Ambac Policy, this Insurance Agreement or any of the other Documents, and other obligations of this type, or has or would have the effect of reducing the rate of return on capital. (A certificate   23 setting forth in reasonable detail such amounts submitted to Alliance by the Insurer shall be conclusive and binding for all purposes, absent manifest error.)   (b) In addition to any and all of the Insurer’s rights of reimbursement, indemnification, subrogation and to any other rights of the Insurer pursuant hereto or under law or in equity, the Servicer agrees to pay, and to protect,   (i) the negligence, bad faith, willful misconduct, misfeasance, malfeasance or theft committed by any director, officer, employee or agent of the Servicer in   (ii) the violation by the Servicer of any domestic or foreign law, rule or regulation, or any judgment, order or decree applicable to it;   (iii) the breach by the Servicer of any representation, warranty or covenant (other than 3.07(i) of the Agreement) under any of the Basic Documents; or   (iv) the occurrence, in respect of the Servicer, under any of the Basic Documents of any Servicer Default or any event which, with the giving of notice or the lapse of time or both, would constitute any Servicer Default (it being understood that this clause (iv) is not intended to cover losses resulting from the occurrence of a Servicer Default under Section 9.01(p) of the Agreement).   (c) In addition to any and all of the Insurer’s rights of reimbursement, hereto or under law or in equity, each of the Seller and the Issuer, jointly and severally, agree to pay, and to protect, indemnify and save harmless, the Insurer and its officers, directors, shareholders, employees, agents and each Person, if any, who controls the Insurer within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act from and against, any and all claims, losses, liabilities (including penalties), actions, suits, judgments, demands, damages, costs or expenses (including reasonable fees and expenses of attorneys, consultants and auditors and reasonable costs of investigations) of any nature arising out of or relating to the transactions contemplated by the Basic Documents, including, without limitation, by reason of:     theft committed by any director, officer, employee or agent of the Seller or the Issuer in connection with the Transaction;   (iii) the violation by the Seller or the Issuer of any domestic or foreign law, rule or regulation, or any judgment, order or decree applicable to them;   (iv) the breach by the Seller or the Issuer of any representation, warranty or covenant under any of the Basic Documents;   24 (v) any increase in the cost to the Insurer of issuing or maintaining the Ambac Policy or of entering into or performing its obligations under this Insurance Agreement (including the reduction of any premium, fee or other sum received or receivable hereunder) after the date hereof due to either (x) the introduction of or any change in or to the interpretation of any law or regulation by any state insurance regulator or other the governmental authority that promulgated or administers compliance with such law or regulation (other than laws and regulations with respect to taxes imposed on the overall net income of the   (vi) any determination by the Insurer that compliance with any law or regulation or any guideline or request or any written interpretation from any state insurance regulator or other governmental authority, rating agency or similar agency (whether or not having the force of law) which is introduced, implemented or received by the Insurer after the date hereof, affects or would affect capital adequacy or the amount of capital required or expected to be maintained by the Insurer or any corporation controlling the Insurer and that the amount of such capital is increased by or based upon the obligations of the Insurer under either the Ambac Policy, this Insurance Agreement or any of the other Documents, and other obligations of this type, or has or would have the effect of reducing the rate of return on capital. (A certificate setting forth in reasonable detail such amounts submitted to Alliance by the Insurer shall be conclusive and binding for all purposes, absent manifest error.)   (d) If any action or proceeding (including any governmental investigation) shall be brought or asserted against any Person (each, an “Indemnified Party”) in respect of which the indemnity provided in Section 3.4(a), (b), (c) or (d) may be sought from another Person (the “Indemnifying Party”) each such Indemnified Party shall promptly notify the Indemnifying Party in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel satisfactory to the Indemnified Party and the payment of all expenses and reasonable legal fees; provided that failure to notify the Indemnifying Party shall not relieve it from any liability it may have to such Indemnified Party except to the extent that it shall be actually prejudiced thereby. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof at the expense of the Indemnified Party and may assume the defense of any such action or claim in reasonable cooperation with, and with the reasonable cooperation of, the Indemnifying Party; provided, however, that the fees and expenses of separate counsel to the Indemnified Party in any such proceeding shall be at the expense of the Indemnifying Party if (i) the Indemnifying Party has agreed to pay such fees and expenses, (ii) the Indemnifying Party shall have failed to assume the defense of such action or proceeding or employ counsel reasonably satisfactory to the Indemnified Party in any such action or proceeding within a reasonable time after the commencement of such action or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party (in which case, if the Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action or proceeding on behalf of such Indemnified Party, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and   25 expenses of more than one separate firm of attorneys at any time for the Indemnified Parties, which firm shall be designated in writing by the Indemnified Party). Unless it shall be in default of its obligations hereunder, the Indemnifying Party shall not be liable for any settlement of any such action or proceeding effected without its written consent to the extent that any such settlement shall be prejudicial to the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, but, if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding with respect to which the Indemnifying Party shall have received notice in accordance with this subsection (e), the Indemnifying Party agrees to indemnify and hold the Indemnified Parties harmless from and against any loss or liability by reason of such settlement or judgment.   (e) To provide for just and equitable contribution if the indemnification provided by the Indemnifying Party is determined to be unavailable or insufficient to hold harmless any Indemnified Party (other than due to application of this Section), each Indemnifying Party shall contribute to the losses incurred by the Indemnified Party on the basis of the relative fault of the Indemnifying Party, on the one hand, and the Indemnified Party, on the other hand. The relative fault of each Indemnifying Party, on the one hand, and each Indemnified Party, on the other, shall be determined by reference to, among other things, whether the breach or alleged breach is within the control of, the Indemnifying Party or the Indemnified Party, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such breach. No Person guilty of fraudulent misrepresentation (within the meaning of Section (11)f of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.   (f) Notwithstanding the foregoing indemnification obligations, nothing in this Section 3.4 shall be intended by the parties to constitute a guaranty by the Servicer (i) of repayment of the Loans or (ii) of the Issuer’s obligation to increase or replenish the Available Drawing Amount after the Closing Date.   Section 3.5. Payment Procedure.   In the event of any payment by the Insurer for which reimbursement is sought under Section 3.3, the Issuer, Alliance and the Seller agree to accept the voucher or other evidence of payment as prima facie evidence of the propriety thereof and the liability, if any, described in Section 3.3 therefor to the Insurer. All payments to be made to the Insurer under this Insurance Agreement shall be made to the Insurer in lawful currency of the United States of America in immediately available funds at the notice address for the Insurer as specified in the Indenture by no later than 3:00 P.M. (New York time) or as the Insurer shall otherwise direct by written notice to the other parties hereto on the date when due. In the event that the date of any payment to the Insurer or the expiration of any time period hereunder occurs on a day that is not a Business Day, then such payment or expiration of time period shall be made or occur on the next succeeding Business Day with the same force and effect as if such payment was made or time period expired on the scheduled date of payment or expiration date.   Section 3.6. Subrogation.   The parties hereto acknowledge that, to the extent of any payment made by the Insurer pursuant to the Policy, the Insurer shall be fully subrogated to the extent of such payment and any interest due thereon, to the rights of the Noteholders to any moneys paid or payable in respect of the Notes under the Basic Documents or otherwise subject to applicable law. The parties hereto agree that any Note on which any portion of principal or interest has been paid by the Insurer pursuant to the Policy shall be Outstanding until the Insurer has been reimbursed in full therefor in accordance with this Insurance Agreement. The parties hereto agree to such subrogation and further agree to execute such instruments and to take such actions as, in the sole and reasonable judgment of the Insurer, are necessary to evidence such subrogation   26 and to perfect the rights of the Insurer to receive any such moneys paid or payable in respect of the Notes under the Basic Documents or otherwise.   ARTICLE IV   FURTHER AGREEMENTS   Section 4.1. Effective Date; Term of the Insurance Agreement.   This Insurance Agreement shall take effect on the Closing Date and shall remain in effect until the later of (a) such time as the Insurer is no longer subject to a claim under the Ambac Policy and the Ambac Policy shall have been surrendered to the Insurer for cancellation and (b) such time as all amounts payable to the Insurer by the Issuer, the Seller or Alliance (each, together with any affiliates thereof, a “Company Party” and collectively, the “Company Parties”) hereunder or under the Basic Documents and the Notes shall have been irrevocably paid and redeemed in full and such Notes shall have been cancelled; provided, however, that the provisions of Sections 3.2, 3.3 and 3.4 hereof shall survive any termination of this Insurance Agreement.   Section 4.2. Further Assurances and Corrective Instruments.   (a) Except at such times as an Insurer Default shall exist or shall have occurred, neither Alliance, the Seller, the Issuer nor the Indenture Trustee shall grant any waiver of rights under any of the Basic Documents to which any of them is a party without the prior written consent of the Insurer and any such waiver without prior written consent of the Insurer shall be null and void and of no force or effect.   (b) Each of the parties hereto agrees that it will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as the Insurer may reasonably request and as may be required in the Insurer’s reasonable judgment to effectuate the intent and purpose of this Insurance Agreement and the other Basic Documents. Without limiting the foregoing, each of the Company Parties which is a party to any of the Basic Documents hereby authorizes the Indenture Trustee and the Controlling Party (in the case of the Indenture Trustee, subject to the provisions of the Indenture), at the expense of the Issuer, to execute and file financing statements covering the assets covered by any Assignment or owned by the Issuer in such jurisdictions as may be required to confirm title thereto and perfect and maintain the lien thereon, including, without limitation, filings required to maintain perfection pursuant to Article 9 of the Uniform Commercial Code, provided, however, that prior to a Default or Event of Default, any filings intended solely to perfect a lien on Exempt Collateral shall be at the expense of the party effecting such filing. In addition, each of the parties hereto agrees to cooperate with the Rating Agencies in connection with any review of the Transaction conducted during normal business hours and in a manner that does not unreasonably disrupt the business of Alliance, the Seller or the Issuer, that may be undertaken by the Rating Agencies after the date hereof upon prior written notice.   (c) The Seller shall not cause or permit the Issuer to issue any notes or other evidences of indebtedness, or to otherwise incur any indebtedness, other than the indebtedness represented by the Notes.   (d) Alliance, as Servicer, and the Indenture Trustee shall provide the Insurer with copies of all notices required to be delivered pursuant to the Lockbox Agreement.   27 Section 4.3. Obligations Absolute.   (a) The obligations of Company Parties hereunder shall be absolute and unconditional and shall be paid or performed strictly in accordance with this Insurance Agreement and the other Basic Documents under all circumstances irrespective of:   (i) any lack of validity or enforceability of, or any amendment or other modifications of, or waiver with respect to, any of the Basic Documents or the Notes;   (ii) any exchange or release of any other obligations hereunder;   (iii) the existence of any claim, setoff, defense, reduction, abatement or other right that a Company Party which is a party to any of the Basic Documents may have at any time against the Insurer or any other Person;   (iv) any document presented in connection with the Ambac Policy proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;   (v) any payment by the Insurer under the Ambac Policy against presentation of a certificate or other document that does not strictly comply with the terms of the Ambac Policy;   (vi) any failure of the Company Parties to receive the proceeds from the sale of the Notes; and   (vii) any other circumstances, other than payment in full, that might otherwise constitute a defense available to, or discharge of, such party in respect of any Basic Document.   (b) The Company Parties and any and all others who are now or may become liable for all or any part of the obligations of the Company Parties under this Insurance Agreement agree to be bound by this Insurance Agreement and (i) to the extent permitted by law, waive and renounce any and all redemption and exemption rights and the benefit of all valuation and appraisement privileges against the indebtedness and obligations evidenced by any Basic Document or by any extension or renewal thereof; (ii) waive presentment and demand for payment, notices of nonpayment and of dishonor, protest of dishonor and notice of protest; (iii) waive all notices in connection with the delivery and acceptance hereof and all other notices in connection with the performance, default or enforcement of any payment hereunder, except as required by the Basic Documents; (iv) waive all rights of abatement, diminution, postponement or deduction, all defenses, other than payment, and all rights of setoff or recoupment arising out of any breach under any of the Basic Documents, by any party thereto or any beneficiary thereof, or out of any obligation at any time owing to any of the Company Parties; (v) agree that their liabilities hereunder shall be unconditional and without regard to any setoff, counterclaim or the liability of any other Persons for the payment hereof; (vi) agree that any consent, waiver or forbearance hereunder with respect to an event shall operate only for such event and not for any subsequent event; (vii) consent to any and all extensions of time that may be granted by the Insurer with respect to any payment hereunder or other provisions hereof and to the release of any security at any time given for any payment hereunder, or any part thereof, with or without substitution, and to the release of any Person or entity liable for any such payment; and (viii) consent to the addition of any and all other makers, endorsers, guarantors and other obligors for any payment hereunder, and to the acceptance of any and all other security for any payment hereunder, and agree that the addition of any such obligors or security shall not affect the liability of the parties hereto for any payment hereunder.   28 (c) Nothing herein shall be construed as prohibiting any party hereto from pursuing any rights or remedies it may have against any Person in a separate legal proceeding.   Section 4.4. Assignments; Reinsurance; Third-Party Rights.   (a) This Insurance Agreement shall be a continuing obligation of the parties hereto and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. None of the Company Parties may assign its rights under this Insurance Agreement, or delegate any of its duties hereunder, without the prior written consent of the Insurer. Any assignments made in violation of this Insurance Agreement shall be null and void.   (b) The Insurer shall have the right to give participations in its rights under this Insurance Agreement and to enter into contracts of reinsurance with respect to the Ambac Policy upon such terms and conditions as the Insurer may in its discretion determine; provided, however, that no such participation or reinsurance agreement or arrangement shall relieve the Insurer of any of its obligations hereunder or under the Ambac Policy, and provided further that any reinsurer or participant will not have any rights against the Company Parties, the Noteholders or the Indenture Trustee and that the Company Parties, the Noteholders and the Indenture Trustee shall have no obligation to have any communication or relationship with any reinsurer or participant in order to enforce the obligations of the Insurer hereunder and under the Ambac Policy.   (c) In addition, the Insurer shall be entitled to assign or pledge to any bank, other lender or reinsurer providing liquidity or credit with respect to Transaction or the obligations of the Insurer in connection therewith, any rights of the Insurer under the Basic Documents or with respect to any real or personal property or other interests pledged to the Insurer or in which the Insurer has a security interest, in connection with the Transaction, subject in each case to the liens granted pursuant to the Basic Documents, provided, that no such bank or other lender shall thereby obtain any direct right against Company Parties, the Noteholders or the Indenture Trustee, and further provided, that no such assignment or pledge shall give any assignee the right to exercise any discretionary authority that the Basic Documents provide shall be exercisable by the Insurer or relieve the Insurer of any of its obligations hereunder or under the Ambac Policy.   (d) Except as provided herein with respect to participants and reinsurers, nothing in this Insurance Agreement shall confer any right, remedy or claim, express or implied, upon any Person not a party hereto, including, particularly, any Noteholders, other than the rights of the Insurer against the Company Parties and all the terms, covenants, conditions, promises and agreements contained herein shall be for the sole and exclusive benefit of the parties hereto and their successors and permitted assigns. Neither the Indenture Trustee nor any Noteholders shall have any right to payment from any Premiums paid or payable hereunder or under the Indenture or from any amounts paid by the Issuer, the Seller or Alliance pursuant to Sections 3.3 or 3.4 hereof.   Section 4.5. Liability of the Insurer.   Neither the Insurer nor any of its officers, directors or employees shall be liable or responsible for: (a) the use that may be made of the Ambac Policy by the Indenture Trustee or for any acts or omissions of the Indenture Trustee in connection therewith; or (b) the validity, sufficiency, accuracy or genuineness of documents delivered to the Insurer in connection with any claim under the Ambac Policy, or of any signatures thereon, even if such documents or signatures should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged (unless the Insurer shall have actual knowledge thereof). In furtherance and not in limitation of the foregoing, the Insurer may accept further investigation.   29 Section 4.6. Annual Servicing Audit and Certification.   If an Event of Default, Servicer Default or Rapid Amortization Event shall have occurred and be continuing, the annual servicing audit required pursuant to Section 5.02 of the Agreement shall be performed by independent public accountants acceptable to the Insurer at the cost of Alliance without regard to the limitations set forth herein on expenses of any audit. The Insurer confirms that each of the independent public accountants (other than PricewaterhouseCoopers) is an acceptable independent public accountant until the Insurer otherwise notifies Alliance in writing.   Section 4.7. Resignation of Insurer.   The Insurer agrees to resign as Control Party upon thirty (30) days’ prior written notice from the Indenture Trustee (acting at the direction of the Note Purchasers (other than the Seller) representing 66-2/3% of the aggregate principal balance of the Notes held by Persons other than the Seller) if the financial strength rating of the Insurer falls below AAA by S&P and Aaa by Moody’s, provided that, as a condition to any such resignation, (a) the Ambac Policy shall be returned and canceled, (b) the Insurer shall be released from all of its obligations in connection with the Transaction pursuant to a general release in form and substance satisfactory to it and (c) all amounts owed to the Insurer under this Insurance Agreement and any other Basic Document shall be paid in full.   Section 4.8. Rights and Remedies.   Each party to this Insurance Agreement has acknowledged and agreed to, and hereby confirms its acknowledgement and agreement to, the pledge, and collateral sale and assignment by the Seller to the Issuer, and by the Issuer to the Indenture Trustee, of all of its right, title and interest in, to and under the Trust Estate, and the Documents and all of the Issuer’s rights, remedies, powers and privileges and all claims of the Seller against Alliance, and of the Issuer against the Seller or Alliance, under or with respect to the Documents (whether arising pursuant to the terms thereof or otherwise available at law or in equity), including without limitation (whether or not any of a Default, an Event of Default, a Servicer Default or a Rapid Amortization Event, or any event with notice or lapse of time would constitute any of the same, has occurred and is continuing) (i) the right of the Seller and/or the Issuer at any time to enforce the Documents against Alliance or the Seller and the obligations of the Servicer and the Seller thereunder and (ii) the right at any time to give or withhold any and all consents, requests, notices, directions, approvals, demands, extensions or waivers under or with respect to any Document or the obligations in respect of Alliance or the Seller thereunder, all of which rights, remedies, powers, privileges and claims may, notwithstanding any provision to the contrary by any of the Documents, be exercised and/or enforced by the Indenture Trustee in lieu of and in the place and stead of the Seller and the Issuer to the same extent as the Seller or the Issuer would otherwise do, and neither the Seller nor the Issuer may exercise any of the foregoing rights without the prior written consent of the Insurer. Each party hereto further acknowledges and agrees that, unless an Insurer Default has occurred and is continuing, the Indenture Trustee will take or refrain from taking any action, and exercise or refrain from exercising any rights under the Documents in its capacity as Indenture Trustee, solely pursuant to the written direction of the Insurer; provided, however, that the obligations of the Indenture Trustee to take or refrain from taking, or to exercise or refrain from exercising, any such action or rights shall not apply to routine administrative tasks required to be performed by the Indenture Trustee pursuant to the Documents and shall be limited to those actions and rights that can be exercised or taken (or not exercised or taken, as the case may be) in full compliance with the provisions of the Documents and with applicable law. No Noteholder, unless an Insurer Default has occurred and is continuing, shall at any time be able to direct the Indenture Trustee to exercise any of such rights.   30 ARTICLE V   DEFAULTS AND REMEDIES   Section 5.1. Defaults.   The occurrence of any of the following events shall constitute an “Event of Default” hereunder:   (a) Any representation or warranty made by any of the Company Parties hereunder or under the Basic Documents, or in any certificate furnished hereunder or under the Basic Documents, shall prove to be untrue or misleading in any material respect; provided, however, that if such Company Party effectively cures any such defect in any representation or warranty under any Basic Document or certificate or report furnished under any Basic Document, within the time period specified in the related document as the cure period therefor, such defect shall not in and of itself constitute an Event of Default;   (b) (i) Alliance or the Issuer shall fail to pay or deposit when due any amount required to be paid or deposited by it hereunder or under any other Basic Document, or (ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that this Insurance Agreement or the Indenture is not valid and binding on the Company Parties hereto or thereto;   (c) The occurrence and continuance of a Servicer Default under the Agreement or an Event of Default under the Indenture;   (d) Any failure on the part of any Company Party duly to observe or perform in any material respect any other of the covenants or agreements on the part of such Company Party contained in this Insurance Agreement or in any other Basic Document which continues unremedied beyond any cure period provided therein, or, in the case of this Insurance Agreement, for a period of 30 days after the earlier of the date on which written notice of such failure, requiring the same to be remedied, shall have been given to Alliance by the Insurer (with a copy to the Indenture Trustee) or by the Indenture Trustee (with a copy to the Insurer), or a Responsible Officer of such Company Party shall have actual knowledge thereof;   (e) The entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for appointment of a conservator, receiver or liquidator or similar official for any Company Party which is a party to any Basic Document in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings or for the winding up or liquidation of their respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days;   (f) The consent by any Company Party which is a party to any Basic Document to the appointment of a conservator or receiver or liquidator or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings of or relating to such Company Party or of relating to substantially all of their respective property; or any such Company Party shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;   provided, however, that to the extent that any event described in clause (a), (b) or (d) above in respect of any Company Party shall be based solely on breach of a representation and warranty or covenant of such Company Party made in any Basic Document (other than this Insurance Agreement) which breach shall also be the basis for an Event of Default under the Indenture or a Servicer Default, then such event shall   31 not constitute an Event of Default hereunder unless it shall also constitute such Event of Default under the Indenture or a Servicer Default.   Section 5.2. Remedies; No Remedy Exclusive.   (a) Upon the occurrence of an Event of Default hereunder, the Insurer may take whatever action at law or in equity as may appear necessary or desirable in its judgment to collect the amounts, if any, then due under this Insurance Agreement, the Purchase Agreement, the Agreement, the Indenture or any other Basic Document or to enforce performance and observance of any obligation, agreement or covenant of the Company Parties under this Insurance Agreement, the Purchase Agreement, the Agreement, the Indenture or any other Basic Document, either in its own capacity or in its capacity as Controlling Party.   (b) Unless otherwise expressly provided, no remedy herein conferred or reserved is intended to be exclusive of any other available remedy, but each remedy shall be cumulative and shall be in addition to other remedies given under this Insurance Agreement, the Purchase Agreement, the Agreement, the Indenture or any other Basic Document, or existing at law or in equity. No delay or omission to exercise any right or power accruing under this Insurance Agreement, the upon the happening of any event set forth in Section 5.1 shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Insurer to exercise any remedy reserved to the Insurer in this Article, it shall not be necessary to give any notice, other than such notice as may be required by this Article.   (c) Each party to this Insurance Agreement hereby agrees that, in addition to any other rights or remedies existing in its favor, the Insurer shall be entitled to specific performance and/or injunctive relief in order to enforce any of its rights or any obligation owed to it under the Documents.   Section 5.3. Waivers.   (a) No failure by the Insurer to exercise, and no delay by the Insurer in exercising, any right hereunder shall operate as a waiver thereof. The exercise by the Insurer of any right hereunder shall not preclude the exercise of any other right, and the remedies provided herein to the Insurer are declared in every case to be cumulative and not exclusive of any remedies provided by law or equity.   (b) The Insurer shall have the right, to be exercised in its complete discretion, to waive any Event of Default hereunder, by a writing setting forth the terms, conditions and extent of such waiver signed by the Insurer and delivered to Alliance and the Indenture Trustee. Unless such writing expressly provides to the contrary, any waiver so granted shall extend only to the specific event or occurrence which gave rise to the Event of Default so waived and not to any other similar event or occurrence which occurs subsequent to the date of such waiver.   ARTICLE VI   MISCELLANEOUS   Section 6.1. Amendments, Etc.   This Insurance Agreement may be amended, modified, supplemented or terminated only by written instrument or written instruments signed by the parties hereto. No consent of any reinsurer or participant contracted with by the Insurer pursuant to Section 4.4(b) hereof shall be required for any amendment,   32 modification, supplement or termination hereof. Alliance agrees to provide a copy of any amendment to this Insurance Agreement promptly to the Indenture Trustee and the Rating Agencies. No act or course of dealing shall be deemed to constitute an amendment, modification, supplement or termination hereof. The other Basic Documents may be amended only with the prior written consent of the Insurer.   Section 6.2. Notices.   All demands, notices and other communications to be given hereunder shall be in writing (except as otherwise specifically provided herein) and shall be (i) mailed by prepaid registered or certified mail, return receipt requested, or (ii) personally delivered by messenger or overnight courier (with confirmation of receipt) and in either case telecopied to the recipient as follows:     (a) To the Insurer: Ambac Assurance Corporation One State Street Plaza Attention: Structured Finance Department - ABS Telecopy No.: 212-208-3547 Confirmation: 212-668-0340   (in each case in which notice or other communication to the Insurer refers to Servicer Default, an Event of Default (hereunder or under the Indenture), an Rapid Amortization Event, a claim on the Ambac Policy or any event with respect to which failure on the part of the Insurer to respond shall be deemed to constitute consent or acceptance, then a copy of such notice or other communication shall also be sent to the attention of the general counsel of each of the Insurer and the Indenture Trustee and shall be marked to indicate “URGENT MATERIAL ENCLOSED.”)     (b) To Alliance: Alliance Laundry Systems LLC Shepard Street P.O. Box 990 Ripon, WI 54971-0990 Attention: Treasurer Telecopy No.: 920-748-1629 Confirmation No.: 920-748-1634   with copies to (i) the General Counsel at the same address, Telecopy No. 920-748-4334, Confirmation No. 920-748-4320 and (ii) Ropes & Gray, One International Place, Boston, MA 02110-2624, Attention: Alison T. Bomberg, Telecopy No. 617-951-7050, Confirmation No. 617-951-7000.     (c) To the Issuer:   Alliance Laundry Equipment Receivables Trust 2005-A c/o Wilmington Trust Company, as owner trustee Rodney Square North 1100 North Market Street CFS, Ninth Floor Wilmington, Delaware 19890-0001 Attention: Corporate Trust Administration Telecopy No.: 302-636-4140 Confirmation No.: 302-636-6185   33 With copies to the addressees set forth in clause (b) above     (d) To the Seller: Alliance Laundry Equipment Receivables 2005 LLC Shepard Street P.O. Box 990 Attention: Treasurer   920-748-4334, Confirmation No. 920-748-4320, (ii) Ropes & Gray, One Telecopy No. 617-951-7050, Confirmation No. 617-951-7000 and (iii) to Alliance at the address set forth in clause (b) above.     (e) To the Indenture Trustee, at its Corporate Trust Office.   A party may specify an additional or different address or addresses by writing mailed or delivered to the other parties as aforesaid. All such notices and other communications shall be effective upon receipt.   Section 6.3. Severability.   In the event that any provision of this Insurance Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, the parties hereto agree that such holding shall not invalidate or render unenforceable any other provision hereof. The parties hereto further agree that the holding by any court of competent jurisdiction that any remedy pursued by any party hereto is unavailable or unenforceable shall not affect in any way the ability of such party to pursue any other remedy available to it.   Section 6.4. Governing Law.   This Insurance Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws provisions.   Section 6.5. Consent to Jurisdiction.   (a) THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND TO OR IN CONNECTION WITH ANY OF THE BASIC DOCUMENTS OR THE TRANSACTION OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RELATING THERETO, AND THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL BE HEARD OR DETERMINED IN SUCH   34 NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE PARTIES AGREE THAT A FINAL NONAPPEALABLE JUDGMENT IN ANY SUCH ACTION, SUIT 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. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE AND AGREE NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THE RELATED DOCUMENTS OR THE SUBJECT MATTER THEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURTS.   (b) To the extent permitted by applicable law, the parties shall not seek and hereby waive the right to any review of the judgment of any such court by any court of any other nation or jurisdiction which may be called upon to grant an enforcement of such judgment.   (c) Service on any party hereto may be made by mailing or delivering copies of the summons and complaint and other process which may be served in any suit, action or proceeding to such party at its address listed in Section 6.2(b) herein. Such address may be changed by the applicable party or parties by written notice to each of the other parties hereto.   (d) Nothing contained in this Insurance Agreement shall limit or affect any party’s right to serve process in any other manner permitted by law or to start legal proceedings relating to any of the Basic Documents against any other party or its properties in the courts of any jurisdiction.   Section 6.6. Consent of the Insurer.   In the event that the consent of the Insurer is required under any of the Basic Documents, the determination whether to grant or withhold such consent shall be made by the Insurer in its sole discretion without any implied duty towards any other Person, except to the extent a different standard may apply as expressly provided therein.   Section 6.7. Counterparts.   This Insurance Agreement may be executed in counterparts by the parties hereto, and all such counterparts shall constitute one and the same instrument.   Section 6.8. Headings.   The headings of Articles and Sections and the Table of Contents contained in this Insurance Agreement are provided for convenience only. They form no part of this Insurance Agreement and shall not affect its construction or interpretation.   Section 6.9. Trial by Jury Waived.   Each party hereby waives, to the fullest extent permitted by law, any right to a trial by jury in respect of any litigation arising directly or indirectly out of, under or in connection with any of the Basic Documents or any of the transactions contemplated thereunder. Each party hereto (A) certifies that no representative, agent or attorney of any party hereto has represented, expressly or otherwise, that it would not, in the event of litigation, seek to enforce the foregoing waiver and (B) acknowledges that it has been induced to enter into the Basic Documents to which it is a party by, among other things, this waiver.   35 Section 6.10. Limited Liability.   No recourse under any Basic Document shall be had against, and no personal liability shall attach to, any officer, employee, director, affiliate or shareholder of any party hereto, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise in respect of any of the Basic Documents, the Notes or the Ambac Policy, it being expressly agreed and understood that each Basic Document is solely a corporate obligation of each party hereto, and that any and all personal liability, either at common law or in equity, or by statute or constitution, of every such officer, employee, director, affiliate or shareholder for breaches of any party hereto of any obligations under any Basic Document is hereby expressly waived as a condition of and in consideration for the execution and delivery of this Insurance Agreement.   Section 6.11. Entire Agreement; Facsimile Signatures.   This Insurance Agreement, the Fee Letter and the Ambac Policy set forth the entire agreement between the parties with respect to the subject matter hereof and thereof, and supersede and replace any agreement or understanding that may have existed between the parties prior to the date hereof in respect of such subject matter. Execution and delivery of this Insurance Agreement by facsimile signature shall constitute execution and delivery of this Insurance Agreement for all purposes hereof with the same force and effect as execution and delivery of a manually signed copy hereof.   Section 6.12. Indenture Trustee.   The Indenture Trustee hereby acknowledges and agrees to perform all its obligations and duties pursuant to the Basic Documents to which it is a party thereto.   Section 6.13. Third-Party Beneficiary.   Each of the parties hereto agrees that the Insurer shall have all rights of an intended third-party beneficiary in respect of each of the Basic Documents, including but not limited to enforcing the respective obligations of the parties thereunder.   Section 6.14. No Proceedings.   Each of the parties hereto (other than, after the Notes are paid in full, the Insurer) agrees that it will not institute against the Issuer or Seller any involuntary proceeding or otherwise institute any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any federal or state bankruptcy or similar law until the date which is one year and one day since the last day on which any Notes shall have been outstanding and all amounts payable to the Insurer hereunder shall have been paid in full.   Section 6.15. Limited Recourse.   Each of the parties hereto agrees that any obligation of the Issuer hereunder or under any of the other Basic Documents will be payable by the Issuer solely from funds when, if and to the extent available for such purpose pursuant to the Indenture and that, except in the event of a claim for reimbursement for payment of principal under the Ambac Policy or in the event of acceleration of the principal amount of the Notes, any amount in excess of the amount so available shall not constitute a current claim against the Issuer therefor.   Section 6.16. No Recourse.   It is expressly understood and agreed by the parties hereto that (a) this Insurance Agreement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as trustee of the   36 Issuer, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust Company, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Insurance Agreement or any other related documents.   Section 6.17. Regulatory Change.   In the event of any Regulatory Change (as defined in the Note Purchase Agreement; provided, that for purposes of this Section 6.17, the term Regulatory Change shall include the Insurer) which results in either (i) a determination that the Issuer or any CP Conduit (as defined in the Note Purchase Agreement) is not a Qualified Special Purpose Entity that is not required, under generally accepted accounting principles, to consolidate its financial statements with any other entity, or (ii) a cost arising under Section 2.3 of the Note Purchase Agreement, the parties hereto agree to negotiate in good faith to amend the Basic Documents in order to eliminate the consolidation requirement; provided, however, that no party shall be obligated to take any action (or make any amendments) if in the reasonable opinion of such party any such amendment to the Basic Documents will be unlawful or otherwise disadvantageous or inconsistent with its policies or regulatory restrictions or result in any liability, unreimbursed cost or expense to such party.   37 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as of the day and year first above mentioned.   AMBAC ASSURANCE CORPORATION,     as Insurer By:         Name:     Title: ALLIANCE LAUNDRY SYSTEMS LLC By:         Name:     Title: ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES TRUST 2005-A, as Issuer By:   WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as owner trustee By:         Name:     Title:   Signature Page 1 Insurance and Indemnity Agreement ALLIANCE LAUNDRY EQUIPMENT RECEIVABLES 2005 LLC, as Seller By:         Name:     Title:   as Indenture Trustee By:         Name:     Title:   Signature Page 2 Insurance and Indemnity Agreement   EXHIBIT A FORM OF AMBAC POLICY   A-1   EXHIBIT B-1   Periodic On-Going Reviews   1. Independent Public Accountants reasonably acceptable to the Insurer (referred to herein as “Auditor”) will compare the aggregate amount of all Collections with respect to the Loans received by the Servicer during three calendar months per calendar year, as selected by the Auditor (each such calendar month referred to herein as a “Review Period”) against (a) the amounts reported in the monthly Servicer’s Certificate, (b) the aggregate amount of Collections indicated on the Servicer’s accounting system or a “tape” derived from the accounting system (“Accounting Systems”) and (c) the Loan Credit and Collection Policy, noting any exceptions.   2. The Auditor will select 3 reports at random provided on a monthly basis by the Servicer or the Indenture Trustee and will compare all amounts on the report to the general ledger and cash reports, noting any exceptions. Information to be calculated and or confirmed includes the Aggregate Loan Balance, Collections with respect to Loans, Servicer Advances, Liquidation Proceeds, Liquidation Expenses and all related cash receipt line items. The Auditor will confirm, by recalculating, the Equipment Loan Borrowing Base, the Equipment Loan Collateral Value, the Equipment Loan Reserve Requirement, and the Equipment Loan LC Amount. The Auditor will recalculate all contributing line items reported on the report and confirm balances in the Servicer’s book and records as well as on cash reports from bank statements. The Auditor will confirm that the Servicer is completing the report according to the Documents. The Auditor will recalculate and confirm all cash applications related to the payment and calculation of interest due on the Equipment Loan Notes. The Auditor will recalculate all Excess Loan Concentration Amounts on the report, verifying balances using the Servicer’s books and records, noting any exceptions. Delinquency Ratio – Equipment Loans and Default Ratio – Equipment Loans will be recalculated and balances confirmed with the general ledger.   3. The Auditor will select a total of 50 (25 fixed rate and 25 floating rate) individual cash receipts posted to the Loan Lockbox Account during the Review Periods (each such cash receipt being a “Selected Receipt”). The Auditor will compare the amount of Loan payments included on a copy of the check and the remittance advice relating to such Selected Receipts against the amounts reflected on the Accounting Systems, noting any exceptions.   4. For each of the Selected Receipts, the Auditor will compare the amount of the Loan payment posted to the Accounting Systems to the amount of the loan payment indicated in the relevant contract for such Loan (each a “Contract”) and files maintained by the Servicer noting any exceptions.   5. For any of the Selected Receipts which indicate a remittance of sales tax, the Auditor will trace such sales tax remittances prepared by the management of the Servicer (the “Management Schedule”) detailing tax payments received by tax jurisdiction noting any exceptions. The Auditor will also trace the sales tax remittance to the supporting schedules included in the applicable sales tax return noting any exceptions. The Auditor will recalculate the summation amounts on three of the ten largest sales tax returns and additionally verify that the dates or the Servicer’s checks remitting payment to the respective states is within the required filing period.   6. The Auditor will recalculate the interest expense prepared by the Servicer for one Review Period by using (i) the outstanding Equipment Loan Note balance at the beginning of the Review Period   B1-1   as set forth in the related Servicer’s Certificate and (ii) the amount shown as the Equipment Loan Note rate relating to such Review Period. The amount of interest expense so recalculated will be compared against the information provided in the monthly Servicer’s Certificate, noting any exceptions.   7. The Auditor will confirm the amount of early pay-offs received during each of the Review Periods based on a comparison of the information contained in the relevant Servicer’s Certificates to the information contained in the Accounting Systems and to the Loan Credit and Collection Policy, noting any exceptions.   8. Management will provide a list of all early pay-off Contracts during each of the Review Periods. The Auditor will select a total of five Contracts listed as “early pay-offs” from the pay-off schedule. For each Contract so selected, the Auditor will compare the amount deposited into the Loan Lockbox Account or the Loan Collection Account in respect of such Contract with the amount of early pay-off specified in the pay-off schedule and to the Loan Credit and Collection Policy, noting any exceptions.   9. Using the dates reflected on the copy of the check (or top portion of the check) and remittance advice, the Auditor will verify that the respective Selected Receipt posting or effective date related to the underlying Loan transaction in the Accounting Systems was in the same month as reflected on the copy of the check (or top portion of the check) and the remittance advice noting any exceptions.   10. The Auditor will obtain from management a schedule of Contracts which have become Defaulted Equipment Loans during each Review Period and will compare the Note Principal Balance of each Defaulted Contract to the information on the Accounting Systems and on a total basis to the related Servicer’s Certificate   11. The Auditor will select 10 Defaulted Equipment Loans from each Review Period and trace recoveries for each of those Equipment Loans recorded on the Accounting System to the related Servicer’s Certificate and to the Loan Credit and Collection Policy, noting any exceptions.   12. The Auditor will select three monthly bank reconciliations for the Loan Lockbox Account. The Auditor will verify the mathematical accuracy of the bank reconciliations. The Auditor will trace the balance per the bank to the bank statement, the book balance to the general ledger and the amounts listed as reconciling items in the bank reconciliation to the Servicer’s Certificate, as applicable.   13. The Auditor will select three monthly bank reconciliations for the Loan Collection Account. The Auditor will verify the mathematical accuracy of the bank reconciliations. The Auditor will trace the balance per the bank to the bank statement, the book balance to the general ledger and the amounts listed as applicable.   14. The Auditor will verify whether the Servicer has procedures in place to monitor and make or cause to be made UCC financing or continuation statements with respect to the Loans based on reasonable details provided by the Servicer.   15. The Servicer will conduct a mailing verification of 50 Contracts requesting confirmation as of each fiscal year end of: (i) Loan schedule number (if appropriate); (ii) whether the Loan is still in existence; (iii) remaining payments; and (iv) payment amount. Auditor will compare responses   B1-2   received to such information to the information in the Accounting Systems, noting any exceptions.   16. The Auditor will compare the Aggregate Loan Balance and the balance for each Equipment Loan Note at the close of business on the last day of each Review Period as reported in the Servicer’s Certificate to the information indicated in the Accounting Systems, noting any exceptions.   17. For the Selected Receipts, the Auditor will verify whether the Accounting Systems correctly identify ownership interest in the related receivables for the Selected Receipts.   18. For each Review Period, the Auditor will recalculate the Delinquency Ratio – Equipment Loans and Default Ratio – Equipment Loans set forth in the Servicer’s records and the related Servicer’s Certificate. The Auditor will compare such information with the numeric information used in such calculations in the Accounting Systems or the Servicer’s general ledger, as applicable, noting any exceptions, and will verify the mathematical accuracy of the calculations.   19. The Auditor will compare 10 Contracts included in the Servicer’s Certificate by delinquency category against the information in the Accounting Systems for accuracy of the aging and to the Loan Credit and Collection Policy, noting any exceptions.   20. For each Review Period, the Auditor will compare information obtained from the Accounting System and provided by Management to recalculate the Excess Loan Concentration Amount, to information indicated in the related Servicer’s Certificates, noting any exceptions.   21. The Auditor will confirm, for each of the 50 Contracts, that UCC financing statements have been filed in respect thereof within 20 days of delivery of the Equipment related to such Contract, noting any exceptions. Copies of documents and confirmations by the Indenture Trustee shall serve as evidence of filing.   Ambac in its sole discretion reserves the right to add criteria or change requirements based on transaction performance and market conditions.   B1-3   EXHIBIT B-2 ACCOUNTANTS REVIEW OF RECEIVABLES   Annual Due Diligence Review   to herein as “Auditor”) will select a total of 25 individual credit files (as defined by a business name, the “Selected Accounts”) from the information provided by the Servicer’s accounting system or a “tape” derived from the accounting system (“Accounting Systems”). The Selected Accounts will consist of the top 10 exposures by dollar value outstanding and 15 other selected accounts by the Auditor. The Auditor will compare the following fields in the Accounting Systems to the original credit file (“Credit File”) and to the Receivables Credit and Collection Policy, noting any exceptions:     •   Loan File Number     •   Obligor Name     •   Obligor Social Security Number     •   Business Name     •   Obligor Street Address, City and State     •   Current Balance     •   Payment Status     •   Payment Terms     •   Interest Rate   calculated and or confirmed includes the Gross Receivables Balance, Net Receivables Balance, Dilution and the contributing line items. The Auditor will confirm, by recalculating, the Receivables Borrowing Base, the Receivables Required Credit Support, the Receivables Collateral Value and the Reserve Account related to the Receivables and the Receivables LC Amount. The Auditor will recalculate all contributing line items reported on the report and confirm balances in the Servicer’s books and records as well as on cash reports from bank statements. The Auditor will confirm that the report is in compliance with the Documents. The Auditor will recalculate and confirm all cash applications related to the payment and calculation of interest due on the Receivables Notes. Delinquency, Default and Dilution ratios will be recalculated and balances confirmed with general ledger.   3. The Auditor will select 12 reports at random provided on a daily basis by the Servicer or the Indenture Trustee and will compare all amounts on the report to calculated and/or confirmed includes the Gross Receivables Balance, Net Receivables Balance, Dilution and the contributing line items, as applicable. The Auditor will confirm that the report is in compliance with the Documents. The Auditor will confirm the cash receipts recorded on the report and will recalculate balances and the application of cash to the general ledger or records of the Servicer and/or bank statements.   4. The Auditor will compare the individual cash receipts posted to the Receivables Lockbox Account during one monthly period selected by the Auditor (a “Review Period”) for the 25 Selected Accounts (each such cash receipt being a “Selected Receipt”). The Auditor will compare the amount of payments included on checks and the remittance advice relating to such Selected Receipts against the amounts reflected on the Accounting Systems, noting any exceptions.   B2-1 5. The Auditor will compare the aggregate amount of all Collections with respect to Receivables received by the Servicer during the Review Period against the aggregate amount of Collections with respect to Receivables indicated on the Servicer’s Accounting Systems, noting any exceptions.   6. For any of the Selected Accounts which indicate a remittance of sales tax, Alliance or the Servicer (the “Management Schedule”) detailing tax payments received by tax jurisdiction noting any exceptions. The Auditor will also trace the sales tax remittance to the supporting schedules included in the applicable sales tax return noting any exceptions. The Auditor will recalculate the summation amounts on three of the ten largest sales tax returns and additionally verify that the dates on the Servicer’s checks remitting payment to the respective states is within the required filing period.   7. The Auditor will recalculate the interest rate for the Selected Accounts, as applicable. Additionally, the Auditor will recalculate the interest expense billed for such Selected Accounts for the current month using the terms outlined in the Credit File. The amount of interest expense so recalculated will be compared against the information provided on the Accounting Systems and to the Receivables Credit and Collection Policy, noting any exceptions.   8. Servicer will provide a list of all Dilutions received during the Review Period for each of the Selected Accounts. The Auditor will confirm the amount of such Dilutions received during the Review Period based on a comparison of the information contained in the relevant Credit File to the information contained in the Accounting Systems and to the policies stated in the Receivables Credit   9. Management will provide a list of all Dilutions during the Review Period for each of the Selected Accounts. For each of the Selected Accounts, the Auditor will compare the amount deposited into the Receivables Lockbox Account or the Receivables Collection Account in respect of the relevant contracts for the Receivables (each a “Contract”) in such Selected Accounts with the amount of such receipt less stated Dilutions specified in the Dilution schedule and to the   Selected Accounts posting or effective date related to the underlying credit agreement in the Accounting Systems was in the same month as reflected on the copy of the check (or top portion of the check) and the remittance advice, noting any exceptions.   11. Management will provide a list of foreign Credit Files, and Auditor will select a total of 10 foreign Credit Files. The Auditor will review the 10 Contracts during the Review Period and will compare the Balance outstanding of each such foreign Contract to the information on the Accounting Systems and to the policies stated in the Receivables Credit and Collection Policy, noting any exceptions.   12. Management will provide a list of foreign Credit Files, and Auditor will select a total of 10 foreign Credit Files. The Auditor will trace cash receipt for each of those Contracts recorded on the Accounting System to the records in the Credit Files and to the policies stated in the Receivables Credit and Collection Policy, noting any exceptions.   B2-2 13. Management will provide a list of interest bearing Credit Files, and the Auditor will select a total of 10 interest bearing Credit Files. The Auditor will review the 10 interest bearing Credit Files during the Review Period and will compare the Balance outstanding of each such interest bearing Contract to the information on the Accounting Systems and to the policies stated in the   14. Management will provide a list of interest bearing Credit Files, and the will trace cash receipt for each of those Contracts recorded on the Accounting System to the records in the Credit Files and to the policies stated in the   15. Management will provide a list of government Receivables, and the Auditor will select a total of 10 government Receivables. The Auditor will review the 10 government Receivables during the Review Period and will compare the balance outstanding of each government Receivable to the information on the Accounting Systems and to the policies stated in the Receivables Credit and Collection   16. Management will provide a list of government Receivables and the Auditor will select a total of 10 government Receivables. The Auditor will trace cash receipt for each of those Contracts recorded on the Accounting System to the records in the Credit Files and to the policies stated in the Receivables Credit   17. Management will provide a list of all Receivables with repayment terms greater than 90 days, and the Auditor will select a total of 10 such Credit Files. The Auditor will review such the 10 Credit Files during the Review Period and will compare the balance outstanding of each Credit File to the information on the Accounting Systems and to the policies stated in the Receivables Credit   18. Management will provide a list of all Receivables with repayment terms Files. The Auditor will trace cash receipt for each of those contracts recorded on the Accounting System to the records in the Credit Files and to the policies stated in the Receivables Credit and Collection Policy, noting any exceptions.   19. Management will provide a list of all delinquent Receivables during the Review Period. The Auditor will select a total of 10 Credit Files listed as “delinquent” from the delinquency schedule. The Auditor will compare 10 Credit Files categorized as delinquent in the Accounting Systems by delinquency category against the information in the Contract File for accuracy of the aging and to the policies stated in the Receivables Credit and Collection Policy, noting any exceptions.   20. The Auditor will select three monthly bank reconciliations for each of the Domestic Receivables Lockbox and the Foreign Receivables Lockbox. The Auditor will verify the mathematical accuracy of each bank reconciliation. The Auditor will trace the balance per the bank to the bank statement, the book balance to the general ledger and the amounts listed as reconciling items in the bank reconciliation, as applicable. The Auditor will report on any unresolved reconciling items.   21. The Auditor will select three monthly bank reconciliations for the Receivables Collection Account. The Auditor will verify the mathematical accuracy of the bank reconciliation. The Auditor will trace the balance per the bank to the bank statement, the book balance to the general ledger and the amounts listed as reconciling items in the bank reconciliation, as applicable. The Auditor will report on any unresolved reconciling items.   B2-3 22. The Auditor will verify whether the Servicer has procedures in place to with respect to the Receivables based on reasonable details provided by the Servicer.     B2-4

Exhibit 10.71 LOGO [g72899logo001.jpg]     SunTrust Banks, Inc.   TERMS AND CONDITIONS   RESTRICTED STOCK   GRANT DATE: ___________ SunTrust Banks, Inc. (“SunTrust”), a Georgia corporation, pursuant to action of the Compensation Committee (“Committee”) of its Board of Directors and in accordance with the SunTrust Banks, Inc. 2004 Stock Plan (“Plan”), has granted restricted shares of SunTrust Common Stock, $1.00 par value (“Restricted Stock”), upon the following terms as an incentive for Grantee to promote the interests of SunTrust:   Name of Grantee   _________________________________ Shares of Restricted Stock   _________________________________ Grant Date   _________________________________ This Restricted Stock Agreement (the “Stock Agreement”) evidences this Grant, which has been made subject to all the terms and conditions set forth on the attached Terms and Conditions and in the Plan.   SUNTRUST BANKS, INC.     Authorized Officer SUNTRUST BANKS, INC.   2004 STOCK PLAN   GRANT DATE ___________ TERMS AND CONDITIONS OF RESTRICTED STOCK GRANT § 1. EFFECTIVE DATE. This Grant of Restricted Stock to the Grantee is effective as of                      (the “Grant Date”). § 2. VESTING. All shares of Restricted Stock granted to the Optionee pursuant to this Grant shall vest on the applicable day specified in the following vesting schedule (“Vesting Date”):   _____________ _____________   % of the Grant shall be vested on the anniversary of the Grant Date;   _____________ _____________     _____________ _____________   % of the Grant shall be vested on the anniversary of the Grant Date.   No shares shall vest according to the vesting schedule above unless the Grantee is an active employee of SunTrust on the applicable anniversary of the Grant Date specified above, and has been in the continuous employment of SunTrust from the Grant Date through the applicable anniversary date necessary to qualify for the vested percentage indicated in the vesting schedule. Shares may vest prior to the vesting schedule in accordance with the provisions of § 3 or § 4. § 3. ACCELERATED VESTING: CHANGE IN CONTROL. (a) Any shares of Restricted Stock not previously vested shall vest on the date that all of the following events have occurred: (i) there is a Change in Control Date for SunTrust on or before a Vesting Date; (ii) the Grantee’s employment with SunTrust terminates on or before a Vesting Date and at any time before the third anniversary of the date of such Change in Control Date, and (iii) such termination of Grantee’s employment is either (1) involuntary on the part of the Grantee and does not result from his or her death or disability within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), and does not constitute a Termination for Cause, or (2) voluntary on the part of the Grantee and constitutes a Termination for Good Reason. (b) CHANGE IN CONTROL - means a change in control of SunTrust of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities and Exchange Act of 1934, as amended and in effect at the time of such “change in control” (the “Exchange Act”), provided that such a change in control shall be deemed to have occurred at such time as (i) any “person” (as that term is used in Sections 13(d) and 14(d)(2) of the Exchange Act), is or becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly, of securities representing 20% or more of the combined voting power for election of directors of the then outstanding securities of SunTrust or any successor of SunTrust; (ii) during any period of two consecutive years or less, individuals who at the beginning of such period constitute the Board of Directors of SunTrust cease, for any reason, to constitute at least a majority of such Board, unless the election or nomination for election of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period; (iii) the shareholders of SunTrust approve any reorganization, merger, consolidation, or share exchange as a result of which the Common Stock of SunTrust shall be changed, converted or exchanged into or for securities of another corporation (other than a merger with a wholly-owned subsidiary of SunTrust), or any dissolution or liquidation of SunTrust or any sale or the disposition of 50% or more of the assets or business of SunTrust; or (iv) the shareholders of SunTrust approve any reorganization, merger, consolidation or share exchange unless (A) the persons who were the beneficial owners of the outstanding shares of the Common Stock of SunTrust immediately before the consummation of such transaction beneficially own more than 65% of the outstanding shares of the common stock of the successor or survivor corporation in such transaction immediately following the consummation of such transaction and (B) the number of shares of the common stock of such successor or survivor corporation beneficially owned by the persons described in § 3(b)(iv)(A) immediately following the consummation of such transaction is beneficially owned by each such person in substantially the same proportion that each such person had beneficially owned shares of SunTrust Common Stock immediately before the consummation of such transaction, provided (C) the percentage described in § 3(b)(iv)(A) of the beneficially owned shares of the successor or survivor corporation and the number described in § 3(b)(iv)(B) of the beneficially owned shares of the successor or survivor corporation shall be determined exclusively by reference to the shares of the successor or survivor corporation which result from the beneficial ownership of shares of Common Stock of SunTrust by the persons described in § 3(b)(iv)(A) immediately before the consummation of such transaction. (c) CHANGE IN CONTROL DATE - means either the date which includes the “closing” of the transaction which makes a Change in Control effective if the Change in Control is made effective through a transaction which has a “closing” or the date a Change in Control is reported in accordance with applicable law as effective to the Securities and Exchange Commission if the Change in Control is made effective other than through a transaction which has a “closing.” (d) TERMINATION FOR CAUSE - means a termination of employment which is made primarily because of (i) the “willful” and continued failure of Grantee to perform satisfactorily the duties consistent with Grantee’s title and position reasonably required of him or her by the Board of Directors of SunTrust or supervising management (other than by reason of his or her incapacity due to a physical or mental illness) after a written demand for substantial performance of such duties is delivered to Grantee by such Board or supervising management, where such written demand shall specifically identify the manner in which the Board or supervising management believes Grantee has failed to satisfactorily perform his or her duties and where no act or failure to act shall be deemed “willful” under this definition unless done, or omitted to be done, not in good faith and without a reasonable belief that the act or omission was in the best interests of SunTrust or any Subsidiary, (ii) the commission by Grantee of a felony, or the perpetration by Grantee of a dishonest act, misappropriation of funds, embezzlement, criminal conduct or common law fraud against SunTrust or any Subsidiary or (iii) a serious violation of the SunTrust Code of Conduct policies and procedures, (iv) any other willful act or omission which is materially injurious to the financial condition or business reputation of SunTrust or any Subsidiary. (e) TERMINATION FOR GOOD REASON - means a termination made primarily because of (i) a failure to elect or reelect or to appoint or to reappoint Grantee to, or the removal of Grantee from, the position which he or she held with SunTrust prior to the Change in Control, (ii) a substantial change by the Board or supervising management in Grantee’s functions, duties or responsibilities, which change would cause Grantee’s position with SunTrust to become of less dignity, responsibility, importance or scope than the position held by Grantee prior to the Change in Control or (iii) a substantial reduction of Grantee’s annual compensation from the level in effect prior to the Change in Control or from any level established thereafter with the consent of Grantee. § 4. TERMINATION OF EMPLOYMENT. (a) If prior to a Vesting Date, the Grantee’s employment with SunTrust and its Subsidiaries terminates for any reason other than those described in § 4(b), § 4(c), or § 4(d), and the termination does not result in accelerated vesting as described in § 3, then any shares of Restricted Stock that are not then vested shall be completely forfeited on the date of such termination of employment. (b) If the Grantee’s employment with SunTrust terminates prior to a Vesting Date as a result of the Grantee’s (i) death, or (ii) disability within the meaning of Section 22(e)(3) of the Code, then any shares of Restricted Stock not previously vested shall be vested immediately on the date of such termination of Grantee’s employment. (c) If the Grantee’s employment with SunTrust terminates prior to a Vesting Date as a result of the Grantee’s retirement from SunTrust or its Subsidiaries, or after age 55 in accordance with the terms of the SunTrust Retirement Plan, then a pro-rata number of shares shall be vested based on the Grantee’s service completed from the Grant Date through the date of such Grantee’s actual retirement date. (d) If the Grantee’s employment with SunTrust is involuntarily terminated by reason of a reduction in force which results in a severance benefit payment to the Grantee pursuant to the terms of the SunTrust Banks, Inc. Severance Pay Plan or any successor to such plan, then a pro-rata number of shares shall be vested based on the Grantee’s service completed from the Grant Date through the date of such termination of employment. (d) For purposes of § 4(c) or 4(d) above, the pro rata calculation shall be made by multiplying the number of shares of Restricted Stock that are not then vested by a fraction, having a numerator equal to the number of days from the Grant Date through the date of such termination of employment, and having a denominator equal to the number of days from the Grant Date through the applicable Vesting Date. § 5. GRANTEE’S RIGHTS DURING RESTRICTED PERIOD. (a) During any period when the shares of Restricted Stock are forfeitable, the Grantee may generally exercise all the rights, powers, and privileges of a shareholder with respect to the shares of Restricted Stock, including the right to vote such shares and to receive all regular cash dividends and any stock dividends, and such other distributions as the Committee may designate in its sole discretion, that are paid or distributed on such shares of Restricted Stock. Any Stock dividends declared on a share of Restricted Stock shall be treated as part of the Grant of Restricted Stock and shall be forfeited or become nonforfeitable at the same time as the underlying Stock with respect to which the Stock dividend was declared. (b) No rights granted under the Plan or this Stock Agreement and no shares issued pursuant to this Grant shall be deemed transferable by the Grantee other than by will or by the laws of descent and distribution prior to the time the Grantee’s interest in such shares has become fully vested. § 6. DELIVERY OF VESTED SHARES. (a) Shares of Restricted Stock that have vested in accordance with § 2, § 3 or § 4 shall be transferred to the Grantee as soon as practicable after vesting occurs. (b) By accepting shares of Restricted Stock, the Grantee agrees not to sell shares at a time when applicable laws or SunTrust’s rules prohibit a sale. This restriction will apply as long as the Grantee is an employee, consultant or director of SunTrust or a subsidiary of SunTrust. Upon receipt of nonforfeitable shares subject to this Stock Agreement, the Grantee agrees, if so requested by SunTrust, to hold such shares for investment and not with a view of resale or distribution to the public, and if requested by SunTrust, the Grantee must deliver to SunTrust a written statement satisfactory to SunTrust to that effect. The Committee may refuse to transfer any shares to Grantee for which Grantee refuses to provide an appropriate statement. (c) To the extent that Grantee does not vest in any shares of Restricted Stock, all interest in such shares shall be forfeited. The Grantee has no right or interest in any share of Restricted Stock that is forfeited. § 7. WITHHOLDING. (a) Upon the vesting of any shares of Restricted Stock, the Grantee must pay to SunTrust any applicable federal, state or local withholding tax due as a result of the vesting. Alternatively, if the Grantee makes a proper Code Section 83(b) election, the Grantee must notify SunTrust in accordance with the requirements of Section 83(b) of the Code and promptly pay to SunTrust the applicable federal, state, and local withholding taxes due with respect to the shares of Restricted Stock subject to the election. (b) The Committee shall have the right to reduce the number of shares of Stock actually transferred to the Grantee to satisfy the minimum applicable tax withholding requirements, and the Grantee shall have the right (absent any such action by the Committee and subject to satisfying the requirements under Rule 16b-3) to elect that the minimum applicable tax withholding requirements be satisfied through a reduction in the number of shares of Stock transferred to him. § 8. NO EMPLOYMENT RIGHTS. Nothing in the Plan or this Stock Agreement or any related material shall give the Grantee the right to continue in the employment of SunTrust or any Subsidiary or adversely affect the right of SunTrust or any Subsidiary to terminate the Grantee’s employment with or without cause at any time. § 9. OTHER LAWS. SunTrust shall have the right to refuse to issue or transfer any shares under this Stock Agreement if SunTrust acting in its absolute discretion determines that the issuance or transfer of such Stock might violate any applicable law or regulation. § 10. MISCELLANEOUS. (a) This Stock Agreement shall be subject to all of the provisions, definitions, terms and conditions set forth in the Plan, all of which are incorporated by reference in this Stock Agreement. (b) The Plan and this Stock Agreement shall be governed by the laws of the State of Georgia (without regard to its choice-of-law provisions).

Exhibit 31.1 Rule 13a-14(a)/15d-14(a) Certification I, Dongdon Lin, certify that: 1. I have reviewed this quarterly report on Form 10-Q for the period ended October 31, 2008 of Sunwin International Neutraceuticals, 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 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 15-d-15(f)) for the registrant and have: a.

Exhibit 10.13 PLUMAS BANK DIRECTOR RETIREMENT AGREEMENT THIS DIRECTOR RETIREMENT AGREEMENT (the “Agreement”) is adopted this 21st day of December, 2016, by and between PLUMAS BANK, a California corporation located in Quincy, California (the “Company”) and Steven M. Coldani (the “Director”). The purpose of this Agreement is to provide specified benefits to the Director who contributes to the continued growth, development, and future business success of the Company. Article 1 Definitions Whenever used in this Agreement, the following words and phrases shall have the meanings specified: 1.1 “Accrual Balance” means the liability that should be accrued by the Company, under Generally Accepted Accounting Principles (“GAAP”), for the Company’s obligation to the Director under this Agreement, by applying ASC 715 Compensation—Retirement Benefits and the Discount Rate. Any one of a variety of amortization methods may be used to determine the Accrual Balance. However, once chosen, the method must be consistently applied. The Accrual Balance shall be reported annually by the Company to the Director. 1.2 “Beneficiary” means each designated person, or the estate of the deceased Director, entitled to benefits, if any, upon the death of the Director determined pursuant to Article 4. 1.3 “Beneficiary Designation Form” means the form established from time to time by the Plan Administrator that the Director completes, signs, and returns to the Plan Administrator to designate one or more Beneficiaries. 1.4 “Board” means the Board of Directors of the Company as from time to time constituted. 1.5 “Change in Control” means a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, as such change is defined in Section 409A of the Code and regulations thereunder. 1.6 “Code” means the Internal Revenue Code of 1986, as amended. 1.7 “Disability” means Director: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months; or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering directors of the Company. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering directors of the Company. Upon the request of the Plan Administrator, the Director must submit proof to the Plan Administrator of the Social Security Administration’s or the provider’s determination. 1.8 “Discount Rate” means the rate used by the Plan Administrator for determining the Accrual Balance. The initial Discount Rate is five percent (5%). However, the Plan Administrator, in its discretion, may adjust the Discount Rate to maintain the rate within reasonable standards according to GAAP and/or applicable bank regulatory guidance. 1.9 “Effective Date” means November 1, 2016. 1.10 “Normal Retirement Age” means the earlier of (i) Director attaining age sixty-five (65) and completing one-hundred eighty (180) months of Service; or (ii) the date the Director is required to retire pursuant to the Company’s mandatory retirement policy for Directors. 1.11 “Normal Retirement Date” means the later of Normal Retirement Age or Separation from Service. 1.12 “Plan Administrator” means the plan administrator described in Article 6. 1.13 “Plan Year” means each twelve-month period commencing on November 1st and ending on October 31st of each year. The initial Plan Year shall commence on the Effective Date of this Agreement and end on the following October 31, 2017. 1.14 “Separation from Service” means the termination of the Director’s service as a director of the Company for reasons other than death. 1.15 “Termination for Cause” means Separation from Service for: (a) Gross negligence or gross neglect of duties to the Company; or (b) Conviction of a felony or of a gross misdemeanor involving moral turpitude in connection with the Director’s service with the Company; or (c) Fraud, disloyalty, dishonesty or willful violation of any law or significant Company policy committed in connection with the Director's service and resulting in a material adverse effect on the Company. 1.16 “Years of Service” means the twelve consecutive month period beginning on the date the Director’s service on the Board commences and any twelve (12) month anniversary thereof, during the entirety of which time the Director is a director of the Company. Service with a subsidiary or other entity controlled by the Company before the time such entity became a subsidiary or under such control shall not be considered “credited service” unless the Plan Administrator specifically agrees to credit such service. In addition and solely for the purpose of determining the amount of benefits to be distributed hereunder the Plan Administrator in its discretion may also grant additional Years of Service in such circumstances where it deems such additional service appropriate. Article 2 Distributions During Lifetime 2.1 Vested Benefit. The Company shall distribute to the Director the benefit described in this Section 2.1. 2.1.1 Amount of Benefit. The monthly vested benefit under this Section 2.1 is as follows: Year ending Monthly Benefit 10/31/17 $96.84 10/31/18 $181.71 10/31/19 $262.44 10/31/20 $339.25 10/31/21 $412.31 10/31/22 $481.82 10/31/23 $547.95 10/31/24 $610.86 10/31/25 $670.71 10/31/26 $727.64 10/31/27 $781.80 15 years of Service 11/30/28 $833.33 2.1.2 Distribution of Benefit. The Company shall distribute the vested benefit to the Director commencing on the first day of the month following the Normal Retirement Date. The monthly benefit shall be distributed to the Director for one-hundred eighty (180) months. 2.2 Distribution of Benefit – Disability. If the Director experiences a Disability which results in a Separation from Service prior to the Normal Retirement Age, the Company shall distribute to the Director the benefit described in this Section 2.1.1 commencing on the first day of the month following Separation from Service. The monthly benefit shall be distributed to the Director for one-hundred eighty (180) months. 2.3 Change in Control Benefit. Upon a Change in Control, followed by a Separation from Service, the Company shall distribute to the Director the benefit described in this Section 2.3 in lieu of any other benefit under this Article. 2.3.1 Amount of Benefit. The monthly benefit under this Section 2.3 is $833.33 per month. 2.3.2 Distribution of Benefit. The Company shall distribute the monthly benefit to the Director commencing on the first day of the month following Separation from Service. The monthly benefit shall be distributed to the Director for one-hundred eighty (180) months. 2.3.3 Excess Parachute Payments. Notwithstanding any provision of this Agreement to the contrary, and to the extent allowed by Code Section 409A, if any distribution(s) made under this Section 2.3 would be treated as an “excess parachute payment” under Code Section 280G, the Company shall reduce such distribution(s) to the extent necessary to avoid treating the distribution(s) as an excess parachute payment. 2.4 Distributions Upon Income Inclusion Under Section 409A of the Code. Upon the inclusion of any amount into the Director’s income as a result of the failure of this non-qualified deferred compensation plan to comply with the requirements of Section 409A of the Code, to the extent such tax liability can be covered by the Director’s vested Accrual Balance without further to comply with the requirements of Section 409a of the Code, a distribution shall be made as soon as is administratively practicable following the discovery of the plan failure. 2.5 Change in Form or Timing of Distributions. For distribution of benefits under this Article 2, the Director and the Company may, subject to the terms of Section 8.1, amend the Agreement to delay the timing or change the form of distributions. Any such amendment: (a) may not accelerate the time or schedule of any distribution, except as provided in Section 409A of the Code and the regulations there under; (b) must, for benefits distributable under Sections 2.1, 2.2 and 2.3, delay the commencement of distributions for a minimum of five (5) years from the date the first distribution was originally scheduled to be made; and (c) must take effect not less than twelve (12) months after the amendment is made. Article 3 Distribution at Death 3.1 Death During Active Service. If the Director dies while in the active service of the Company, the Company shall distribute to the Beneficiary the death benefit in a lump sum of $30,000 within 30 days of the Director’s death. 3.2 Death During Distribution of a Benefit. If the Director dies after any benefit distributions have commenced under this Agreement but before receiving all such distributions, the Company shall distribute to the Beneficiary a death benefit in a lump sum equal to the amount of $30,000 less the aggregate amount of benefits previously paid pursuant to this Agreement within 30 days of the Director’s death. 3.3 Death After Separation from Service But Before Benefit Distributions Commence. If the Director is entitled to benefit distributions under this Agreement, but dies prior to the commencement of said benefit distributions, the Company shall distribute to the Beneficiary the death benefit in a lump sum of $30,000 within 30 days of the Director’s death. Article 4 Beneficiaries 4.1 Beneficiary. The Director shall have the right, at any time, to designate a Beneficiary to receive any benefit distributions under this Agreement upon the death of the Director. The Beneficiary designated under this Agreement may be the same as or different from the beneficiary designated under any other plan of the Company in which the Director participates. 4.2 Beneficiary Designation: Change; Spousal Consent. The Director shall designate a Beneficiary by completing and signing the Beneficiary Designation Form, and delivering it to the Plan Administrator or its designated agent. If the Director names someone other than his or her spouse as a Beneficiary, a spousal consent, in the form designated by the Plan Administrator, must be signed by the Director’s spouse and returned to the Plan Administrator. The Director's beneficiary designation shall be deemed automatically revoked if the Beneficiary predeceases the Director or if the Director names a spouse as Beneficiary and the marriage is subsequently dissolved. The Director shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Plan Administrator’s rules and procedures, as in effect from time to time. Upon the acceptance by the Plan Administrator of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Plan Administrator shall be entitled to rely on the last Beneficiary Designation Form filed by the Director and accepted by the Plan Administrator prior to the Director’s death. 4.3 Acknowledgment. No designation or change in designation of a Beneficiary shall be effective until received, accepted and acknowledged in writing by the Plan Administrator or its designated agent. 4.4 No Beneficiary Designation. If the Director dies without a valid beneficiary designation, or if all designated Beneficiaries predecease the Director, then the Director’s spouse shall be the designated Beneficiary. If the Director has no surviving spouse, the benefits shall be made to the personal representative of the Director's estate. 4.5 Facility of Distribution. If the Plan Administrator determines in its discretion that a benefit is to be distributed to a minor, to a person declared incompetent, or to a person incapable of handling the disposition of that person’s property, the Plan Administrator may direct distribution of such benefit to the guardian, legal representative or person having the care or custody of such minor, incompetent person or incapable person. The Plan Administrator may require proof of incompetence, minority or guardianship as it may deem appropriate prior to distribution of the benefit. Any distribution of a benefit shall be a distribution for the account of the Director and the Director’s Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Agreement for such distribution amount. Article 5 General Limitations 5.1 Termination for Cause. Notwithstanding any provision of this Agreement to the contrary, the Company shall not distribute any benefit under this Agreement if the Director’s service with the Company is terminated due to a Termination for Cause. 5.2 Suicide or Misstatement. No benefits shall be distributed if the Director commits suicide within two years after the Effective Date of this Agreement, or if an insurance company which issued a life insurance policy covering the Director and owned by the Company denies coverage (i) for material misstatements of fact made by the Director on an application for such life insurance, or (ii) for any other reason. 5.3 Removal. Notwithstanding any provision of this Agreement to the contrary, the Company shall not distribute any benefit under this Agreement if the Director is subject to a final removal or prohibition order issued by an appropriate federal banking agency pursuant to Section 8(e) of the Federal Deposit Insurance Act. Article 6 Administration of Agreement 6.1 Plan Administrator Duties. This Agreement shall be administered by a Plan Administrator which shall consist of the Board, or such committee or person(s) as the Board shall appoint. The Plan Administrator shall administer this Agreement according to its express terms and shall also have the discretion and authority to (i) make, amend, interpret and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions including interpretations of this Agreement, as may arise in connection with the Agreement to the extent the exercise of such discretion and authority does not conflict with Section 409A of the Code and regulations thereunder. 6.2 Agents. In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit, (including acting through a duly appointed representative), and may from time to time consult with counsel who may be counsel to the Company. 6.3 Binding Effect of Decisions. The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation and application of the Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement. 6.4 Indemnity of Plan Administrator. The Company shall indemnify and hold harmless the members of the Plan Administrator against any and all claims, losses, damages, expenses or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members. 6.5 Company Information. To enable the Plan Administrator to perform its functions, the Company shall supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Separation from Service of the Director, and such other pertinent information as the Plan Administrator may reasonably require. 6.6 Annual Statement. The Plan Administrator shall provide to the Director, within one hundred twenty (120) days after the end of each Plan Year, a statement setting forth the benefits to be distributed under this Agreement. Article 7 Claims And Review Procedures 7.1 Claims Procedure. A Director or Beneficiary (“claimant”) who has not received benefits under the Agreement that he or she believes should be distributed shall make a claim for such benefits as follows: 7.1.1 Initiation – Written Claim. The claimant initiates a claim by submitting to the Plan Administrator a written claim for the benefits. If such a claim relates to the contents of a notice received by the claimant, the claim must be made within sixty (60)days after such notice was received by the claimant. All other claims must be made within one hundred eighty (180)days of the date on which the event that caused the claim to arise occurred. The claim must state with particularity the determination desired by the claimant. 7.1.2 Timing of Plan Administrator Response. The Plan Administrator shall respond to such claimant within 90 days after receiving the claim. If the Plan Administrator determines that special circumstances require additional time for processing the claim, the Plan Administrator can extend the response period by an additional 90 days by notifying the claimant in writing, prior to the end of the initial 90-day period, that an additional period is required. The notice of extension must set forth the special circumstances and the date by which the Plan Administrator expects to render its decision. 7.1.3 Notice of Decision. If the Plan Administrator denies part or all of the claim, the Plan Administrator shall notify the claimant in writing of such denial. The Plan Administrator shall write the notification in a manner calculated to be understood by the claimant. The notification shall set forth: (a) The specific reasons for the denial; (b) A reference to the specific provisions of the Agreement on which the denial is based; (c) A description of any additional information or material necessary for the claimant to perfect the claim and an explanation of why it is needed; and (d) An explanation of the Agreement’s review procedures and the time limits applicable to such procedures. 7.2 Review Procedure. If the Plan Administrator denies part or all of the claim, the claimant shall have the opportunity for a full and fair review by the Plan Administrator of the denial, as follows: 7.2.1 Initiation – Written Request. To initiate the review, the claimant, within 60 days after receiving the Plan Administrator’s notice of denial, must file with the Plan Administrator a written request for review. 7.2.2 Additional Submissions – Information Access. The claimant shall then have the opportunity to submit written comments, documents, records and other information relating to the claim. The Plan Administrator shall also provide the claimant, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claimant’s claim for benefits. 7.2.3 Considerations on Review. In considering the review, the Plan Administrator shall take into account all materials and information the claimant submits relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. 7.2.4 Timing of Plan Administrator Response. The Plan Administrator shall respond in writing to such claimant within 60 days after receiving the request for review. If the Plan Administrator determines that special circumstances require additional time for processing the claim, the Plan Administrator can extend the response period by an additional 60 days by notifying the claimant in writing, prior to the end of the initial 60-day period, that an additional period is required. The notice of extension must set forth the special circumstances and the date by which the Plan Administrator expects to render its decision. 7.2.5 Notice of Decision. The Plan Administrator shall notify the claimant in writing of its decision on review. The Plan Administrator shall write the notification in a manner calculated to be understood by the claimant. The notification shall set forth: (a) The specific reasons for the denial; (b) A reference to the specific provisions of the Agreement on which the denial is based; (c) A statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claimant’s claim for benefits; and (d) A statement of the claimant’s right to bring a civil action. Article 8 Amendments and Termination 8.1 Amendments. This Agreement may be amended only by a written agreement signed by the Company and the Director. However, the Company may unilaterally amend this Agreement to conform with written directives to the Company from its auditors or banking regulators or to comply with legislative or tax law, including without limitation Section 409A of the Code and any and all regulations and guidance promulgated thereunder. 8.2 Plan Termination Generally. This Agreement may be terminated only by a written agreement signed by the Company and Director. However, the Company may unilaterally terminate this Agreement to conform with written directives to the Company from its auditors or banking regulators or to comply with legislative or tax law, including without limitation Section 409A of the Code and any and all regulations and guidance promulgated there under. In the event the Company unilaterally terminates this Agreement, the Director shall be entitled to receive from the Company an amount equal to the Accrual Balance as of the date the Agreement is terminated. Except as provided in Section 8.3, the termination of this Agreement shall not cause any early distribution of benefits under this Agreement. Rather, upon such termination, benefit distributions will be made in accordance with the distribution schedules set forth under Article 2 or Article 3, as applicable. 8.3 Plan Terminations Under Section 409A. Notwithstanding anything to the contrary in Section 8.2, if the Company terminates this Agreement in the following circumstances: (a)Within thirty (30) days before, or twelve (12) months after a Change in Control, provided that all distributions are made no later than twelve (12) months following such termination of the Agreement and further provided that allthe Company’s arrangements which are substantially similar to the Agreement are terminatedsothe Director and all participants in the similararrangements are required to receive all amounts of compensation deferred under the terminated arrangements within twelve (12) months of the termination of the arrangements; (b) Upon the Company’s dissolution or with the approval of a bankruptcy court provided that the amounts deferred under the Agreement are included in the Director's gross income in the latest of (i) the calendar year in which the Agreement terminates; (ii) the calendar year in which the amount is no longer subject to a substantial risk of forfeiture; or (iii) the first calendar year in which the distribution is administratively practical; or (c) Upon the Company’s termination of this and all other non-account balance plans (as referenced in Section 409A of the Code or the regulations thereunder), provided that all distributions are made no earlier than twelve (12) months and no later than twenty-four (24) months following such termination, and the Company does not adopt any new non-account balance plans for a minimum of five (5) years following the date of such termination; The Company shall distribute the Accrual Balance, determined as of the date of the termination of the Agreement, to the Director in a lump sum subject to the above terms. Article 9 Miscellaneous 9.1 Binding Effect. This Agreement shall bind the Director and the Company, and their beneficiaries, survivors, executors, administrators and transferees. 9.2 No Guarantee of Service. This Agreement is not a contract for service. It does not give the Director the right to remain as a director of the Company, nor does it interfere with the Company’s right to discharge the Director. It also does not require the Director to remain a director nor interfere with the Director's right to terminate service at any time. 9.3 Non-Transferability. Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached or encumbered in any manner. 9.4 Tax Withholding and Reporting. The Company shall withhold any taxes that are required to be withheld, including but not limited to taxes owed under Section 409A of the Code and regulations thereunder, from the benefits provided under this Agreement. The Director acknowledges that the Company’s sole liability regarding taxes is to forward any amounts withheld to the appropriate taxing authority(ies). Further, the Company shall satisfy all applicable reporting requirements, including those under Section 409A of the Code and regulations thereunder. 9.5 Applicable Law. The Agreement and all rights hereunder shall be governed by the laws of the State of California, except to the extent preempted by the laws of the United States of America. 9.6 Unfunded Arrangement. The Director and the Beneficiary are general unsecured creditors of the Company for the distribution of benefits under this Agreement. The benefits represent the mere promise by the Company to distribute such benefits. The rights to benefits are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the Director's life or other informal funding asset is a general asset of the Company to which the Director and Beneficiary have no preferred or secured claim. 9.7 Reorganization. The Company shall not merge or consolidate into or with another bank, or reorganize, or sell substantially all of its assets to another bank, firm, or person unless such succeeding or continuing bank, firm, or person agrees to assume and discharge the obligations of the Company under this Agreement. Upon the occurrence of such event, the term “Company” as used in this Agreement shall be deemed to refer to the successor or survivor bank. 9.8 Entire Agreement. This Agreement constitutes the entire agreement between the Company and the Director as to the subject matter hereof. No rights are granted to the Director by virtue of this Agreement other than those specifically set forth herein. 9.9 Interpretation. Wherever the fulfillment of the intent and purpose of this Agreement requires, and the context will permit, the use of the masculine gender includes the feminine and use of the singular includes the plural. 9.10 Alternative Action. In the event it shall become impossible for the Company or the Plan Administrator to perform any act required by this Agreement, the Company or Plan Administrator may in its discretion perform such alternative act as most nearly carries out the intent and purpose of this Agreement and is in the best interests of the Company, provided that such alternative acts do not violate Section 409A of the Code. 9.11 Headings. Article and section headings are for convenient reference only and shall not control or affect the meaning or construction of any of its provisions. 9.12 Validity. In case any provision of this Agreement shall be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Agreement shall be construed and enforced as if such illegal and invalid provision has never been inserted herein. 9.13 Notice. Any notice or filing required or permitted to be given to the Company or Plan Administrator under this Agreement shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, to the address below: Plumas Bank 35 South Lindan Avenue Quincy, CA 95971 Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. Any notice or filing required or permitted to be given to the Director under this Agreement shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Director. 9.14 Compliance with Section 409A. This Agreement shall at all times be administered and the provisions of this Agreement shall be interpreted consistent with the requirements of Section 409A of the Code and any and all regulations thereunder, including such regulations as may be promulgated after the Effective Date of this Agreement. IN WITNESS WHEREOF, the Director and a duly authorized representative of the Company have signed this Agreement. DIRECTOR:COMPANY: PLUMAS BANK /s/ Steven M. Coldani By _/s/ Andrew J. Ryback Steven M. Coldani Title CEO { }New Designation { }Change in Designation I, Steven M. Coldani, designate the following as Beneficiary under the Agreement: Primary: % % Contingent: % % Notes: ● Please PRINT CLEARLY or TYPE the names of the beneficiaries. ● To name a trust as Beneficiary, please provide the name of the trustee(s) and the exact name and date of the trust agreement. ● To name your estate as Beneficiary, please write “Estate of [your name]”. ● Be aware that none of the contingent beneficiaries will receive anything unless ALL of the primary beneficiaries predecease you. I understand that I may change these beneficiary designations by delivering a new written designation to the Plan Administrator, which shall be effective only upon receipt and acknowledgment by the Plan Administrator prior to my death. I further understand that the designations will be automatically revoked if the Beneficiary predeceases me, or, if I have named my spouse as Beneficiary and our marriage is subsequently dissolved. Name: Signature:Date: SPOUSAL CONSENT (Required if someone other than Spouse named beneficiary): I consent to the beneficiary designation above, and acknowledge that if I am named Beneficiary and our marriage is subsequently dissolved, the designation will be automatically revoked. Spouse Name: Signature:Date: Received by the Plan Administrator this day of , 2 By: Title:

EXHIBIT 31.1 CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION302 OF THE SARBANES-OXLEY ACT OF 2002 I, Frank Neukomm, certify that: 1. I have reviewed this Form 10-K of A5 Laboratories 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 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 present in this report; 4. I am 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 13-a-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 financing 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. 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 involved management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date:August 14, 2013 By: /s/ Frank Neukomm Frank Neukomm Chief Executive Officer (Principal Executive Officer) A5 Laboratories Inc.

As filed with the Securities and Exchange Registration No. 333-28679 Commission on August 18, 2009 Registration No. 811-05626 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Pre-Effective Amendment No. [ ] Post-Effective Amendment No. 52 [X] REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 Amendment No. [X] (Check appropriate box or boxes.) SEPARATE ACCOUNT B (Exact Name of Registrant) ING USA ANNUITY AND LIFE INSURANCE COMPANY (Name of Depositor) 1475 Dunwoody Drive West Chester, Pennsylvania 19380-1478 (Address of Depositor’s Principal Executive Offices) Depositor’s Telephone Number, including Area Code: (610) 425-3400 John S. (Scott) Kreighbaum, Esq. ING Americas (U.S. Legal Services) 1475 Dunwoody Drive, West Chester, Pennsylvania 19380-1478 (610) 425-3404 (Name and Address of Agent for Service of Process) Approximate Date of Proposed Public Offering: As soon as practical after the effective date of the Registration Statement It is proposed that this filing will become effective (check appropriate box): [ X ] immediately upon filing pursuant to paragraph (b) of Rule 485 [ ] on [ ] pursuant to paragraph (b) of Rule 485 [ ] 60 days after filing pursuant to paragraph (a)(1) of Rule 485 [ ] on (date) pursuant to paragraph (a)(1) of Rule 485 If appropriate, check the following box: [ ] this post-effective amendment designates a new effective date for a previously filed post- effective amendment. Title of Securities Being Registered: Deferred Combination Variable and Fixed Annuity Contracts PARTS A and B EXPLANATORY NOTE: Each of the Prospectus and Statement of Additional Information, dated May 1, 2009,as supplemented, is incorporated into Parts A and B, respectively, of this amendment by reference to Post-Effective Amendment No. 50 to this Registration Statement, as filed on April 30, 2009 (Accession No. 0000836687-09-000105). This amendmenthas supplements to the prospectuses and also updates theinformation in Part C of this registration statement, as previously amended, including exhibits and undertaking. SUPPLEMENT Dated August 18, 2009 To The Prospectuses Dated May 1, 2009 For ING GoldenSelect Access ING Architect Variable Annuity ING GoldenSelect ESII ING GoldenSelect Landmark ING GoldenSelect Premium Plus Issued By ING USA Annuity and Life Insurance Company Through Its Separate Account B The purpose of this supplement is: · To notify you of forthcoming reorganizations and liquidations involving certain investment portfolios currently available under your variable annuity contract; and · To make available additional investment portfolios to facilitate the reorganizations. PLEASE NOTE: These new investment portfolios will not be available under your variable annuity contract until a date near in time to the effective date of the reorganizations. If you have any questions, or to give us alternative allocation instructions, please call our Customer Service Center at 1-800-366-0066. PLEASE READ THIS SUPPLEMENT CAREFULLY AND KEEP IT WITH YOUR COPY OF THE PROSPECTUS FOR FUTURE REFERENCE. NOTICE OF REORGANIZATIONS Effective after the close of business on October 23, 2009 , the following investment portfolios indicated as Disappearing Portfolios will reorganize into and become part of the investment portfolios indicated as Surviving Portfolios: Disappearing Portfolios Surviving Portfolios ING LifeStyle Aggressive Growth Portfolio (Class S) ING Retirement Growth Portfolio (ADV Class) ING LifeStyle Growth Portfolio (Class S) ING Retirement Growth Portfolio (ADV Class) ING LifeStyle Conservative Portfolio (Class S) ING Retirement Conservative Portfolio (ADV Class) ING LifeStyle Moderate Growth Portfolio (Class S) ING Retirement Moderate Growth Portfolio (ADV Class) ING LifeStyle Moderate Portfolio (Class S) ING Retirement Moderate Portfolio (ADV Class) Each of the Surviving Portfolios is an Accepted Fund. This designation is important for you to know if you purchased a living benefit rider, along with your contract, which has an asset allocation requirement and is subject to periodic rebalancing, namely, Fixed Allocation Funds Automatic Rebalancing. The latest form of the ING LifePay Plus and ING Joint LifePay Plus riders, first available for sale on and after May 1, 2009 in states where approved, offer the option to elect systematic payments, which we refer to as the Income Optimizer. Your election of the Income Optimizer is subject to restrictions and limitations, as detailed in the prospectus. In the event that you elect the Income Optimizer, the ING Retirement Growth Portfolio is not available as an Accepted Fund, but instead will be designated as an Other Fund. On ING GoldenSelect Premium Plus, the latest form of the ING LifePay Plus and ING Joint LifePay Plus riders is not available. Sep Acct B – 154361 1 of 5 08/2009 Each of these Surviving Portfolios is designated as a Covered Fund for purposes of the death benefit. Contract value allocated to a Covered Fund is eligible for inclusion in calculating the guaranteed portion of any enhanced death benefit associated with your contract. Please refer to the prospectus for more information. Important Information Regarding Reorganizations: These reorganizations will be administered pursuant to an agreement, which has been approved by the board of trustees of the Disappearing Portfolios. The reorganization agreement will also be subject to shareholder approval. If shareholder approval is obtained, it is expected that the reorganizations will take place after the close of business on October 23, 2009, resulting in a shareholder of a given Disappearing Portfolio becoming a shareholder of the corresponding Surviving Portfolio. Each shareholder will thereafter hold shares of the Surviving Portfolio having equal aggregate value as shares of the Disappearing Portfolio, and the Disappearing Portfolio will no longer be available under the contract. Unless you provide us with alternative allocation instructions, all future allocations directed to a given Disappearing Portfolio will be automatically allocated to the corresponding Surviving Portfolio. As a consequence of these reorganizations, pursuant to Fixed Allocation Funds Automatic Rebalancing, your contract value may be automatically rebalanced in order to conform to the required specified percentage of contract value in the Fixed Allocation Funds. Please refer to the prospectus for the details of Fixed Allocation Funds Automatic Rebalancing. References in the prospectus to the Disappearing Portfolios are hereby deleted, effective on and after October 26, 2009. NOTICE OF LIQUIDATIONS Effective after the close of business on October 23, 2009 , the following investment portfolios indicated as Liquidating Portfolios will liquidate and the proceeds will be placed in the investment portfolios indicated as Surviving Portfolios: Liquidating Portfolios Surviving Portfolios ING Multi-Manager International Small Cap Equity ING Intermediate Bond Portfolio (Class S) Portfolio (Class S) ING Global Equity Option Portfolio (Class S) ING Intermediate Bond Portfolio (Class S) The Surviving Portfolio is a Fixed Allocation Fund. This designation is important for you to know if you purchased a living benefit rider, along with your contract, which has an asset allocation requirement and is subject to periodic rebalancing, namely, Fixed Allocation Funds Automatic Rebalancing. Please refer to the prospectus for the details of Fixed Allocation Funds Automatic Rebalancing. The Surviving Portfolio is designated as a Covered Fund for purposes of the death benefit. Contract value allocated to a Covered Fund is eligible for inclusion in calculating the guaranteed portion of any enhanced death benefit associated with your contract. Please refer to the prospectus for more information. Sep Acct B – 154361 2 of 5 08/2009 Important Information Regarding Liquidations: Each liquidation will be administered pursuant to a plan of liquidation and dissolution, which has been approved by the boards of trustees of the Liquidating Portfolios. The plans are subject to shareholder approval. If shareholder approval is obtained, each liquidation and dissolution is expected to take place after the close of business on October 23, 2009. These liquidations and dissolutions are being proposed because the Liquidating Portfolios have been less than popular with the public than originally anticipated, and it is not anticipated that the Liquidating Portfolios will gather substantial assets in the future. Maintaining the Liquidating Portfolios at their respective current asset levels has been determined not to be beneficial in the long-term to shareholders. Before the liquidation date, you may reallocate contract value in a Liquidating Portfolio to another investment portfolio currently available under the contract. This reallocation will neither count as a transfer for purposes of our Excessive Trading Policy nor be subject to a transfer charge under the contract. Contract value remaining in the Liquidating Portfolios on the liquidation date will be placed in the Surviving Portfolio. Thereafter, the Liquidating Portfolios will no longer be available under the contract. Unless you provide us with alternative allocation instructions, all future allocations directed to a given Liquidating Portfolio will be automatically allocated to the Surviving Portfolio. As a consequence of these liquidations, pursuant to Fixed Allocation Funds Automatic Rebalancing, your contract value may be automatically rebalanced in order to conform to the required specified percentage of contract value in the Fixed Allocation Funds. Please refer to the prospectus for the details of Fixed Allocation Funds Automatic Rebalancing. It is important to request a reallocation before the liquidation date if you do not want your contract value in a Liquidating Portfolio to be placed in the Surviving Portfolio. References in the prospectus to the Liquidating Portfolios are hereby deleted, effective on and after October 26, 2009. ADDITIONAL INVESTMENT PORTFOLIOS The additional investment portfolios of each of the ING Investors Trust and ING Variable Portfolios, Inc. indicated below are hereby available under your contract, effective on and after October 26, 2009. ING Investors Trust Effective on and after October 26, 2009 , the following investment portfolios will be available under your Contract –with more information about them hereby added to “Appendix B – The Investment Portfolios” (and their names hereby added to the list of available investment portfolios toward the front of the prospectus). Sep Acct B – 154361 3 of 5 08/2009 Fund Name Investment Adviser/ Subadviser Investment Objective ING Investors Trust ING Retirement Growth Portfolio Investment Adviser: Directed Seeks a high level of total return (ADV Class) Services, LLC (consisting of capital appreciation and Asset Allocation Consultants: income) consistent with a level of risk that ING Investment Management Co. can be expected to be greater than that of ING Retirement Moderate Growth Portfolio. ING Retirement Conservative Portfolio Investment Adviser: Directed Seeks a high level of total return (ADV Class) Services, LLC (consisting of capital appreciation and Asset Allocation Consultants: income) consistent with a conservative ING Investment Management Co. level of risk relative to the other ING Retirement Portfolios. ING Retirement Moderate Growth Investment Adviser: Directed Seeks a high level of total return Portfolio (ADV Class) Services, LLC (consisting of capital appreciation and Asset Allocation Consultants: income) consistent with a level of risk that ING Investment Management Co. can be expected to be greater than that of ING Retirement Moderate Portfolio but less than that of ING Retirement Growth Portfolio. ING Retirement Moderate Portfolio Investment Adviser: Directed Seeks a high level of total return (ADV Class) Services, LLC (consisting of capital appreciation and Asset Allocation Consultants: income) consistent with a level of risk that ING Investment Management Co. can be expected to be greater than that of ING Retirement Conservative Portfolio but less than that of ING Retirement Moderate Growth Portfolio. Each of the above investment portfolios is an Accepted Fund. This designation is important for you to know if you purchased a living benefit rider, along with your contract, which has an asset allocation requirement and is subject to periodic rebalancing, namely, Fixed Allocation Funds Automatic Rebalancing. These investment portfolios are hereby added to the list of currently available Accepted Funds, wherever appropriate. Please refer to the prospectus for the details of Fixed Allocation Funds Automatic Rebalancing. The latest form of the ING LifePay Plus and ING Joint LifePay Plus riders, first available for sale on and after May 1, 2009 in states where approved, offer the option to elect systematic payments, which we refer to as the Income Optimizer. Your election of the Income Optimizer is subject to restrictions and limitations, as detailed in the prospectus. In the event that you elect the Income Optimizer, the ING Retirement Growth Portfolio is not available as an Accepted Fund, but will instead be designated as an Other Fund. On ING GoldenSelect Premium Plus, the latest form of the ING LifePay Plus and ING Joint LifePay Plus riders is not available. Each of the above investment portfolios is designated as a Covered Fund for purposes of the death benefit. Contract value allocated to a Covered Fund is eligible for inclusion in calculating the guaranteed portion of any enhanced death benefit associated with your contract. Please refer to the prospectus for more information. Sep Acct B – 154361 4 of 5 08/2009 ING Variable Portfolios, Inc. Effective on and after October 26, 2009 , the following investment portfolios will be available under your Contract –with more information about them hereby added to “Appendix B – The Investment Portfolios” (and their names hereby added to the list of available investment portfolios toward the front of the prospectus). Fund Name Investment Adviser/ Subadviser Investment Objective ING Variable Portfolios, Inc. ING Dow Jones Euro STOXX 50 ® Investment Adviser: ING Seeks investment results (before fees and Index Portfolio (ADV Class) Investments, LLC expenses) that correspond to the total Investment Subadviser: ING return of the Dow Jones Euro STOXX Investment Management Co. (“DJES”) 50 ® Index (“Index”). ING FTSE 100 Index ® Portfolio (ADV Class) Investment Adviser: ING Seeks investment results (before fees and Investments, LLC expenses) that correspond to the total Investment Subadviser: ING return of the FTSE 100 Index ® (“Index”). Investment Management Co. ING Japan Equity Index Portfolio Investment Adviser: ING Seeks investment results (before fees and (ADV Class) Investments, LLC expenses) that correspond to the total Investment Subadviser: ING return of the Tokyo Price (“TOPIX”) Investment Management Co. Index ® (“Index”). ING NASDAQ 100 Index ® Portfolio Investment Adviser: ING Seeks investment results (before fees and (ADV Class) Investments, LLC expenses) that correspond to the total Investment Subadviser: ING return of the NASDAQ-100 Index ® Investment Management Co. (“Index”). Each of these investment portfolios is an Other Fund. This designation is important for you to know if you purchased a living benefit rider, along with your contract, which has an asset allocation requirement and is subject to periodic rebalancing, namely, Fixed Allocation Funds Automatic Rebalancing. Each of these investment portfolios is also a Covered Fund for purposes of the death benefit. Contract value allocated to a Covered Fund is eligible for inclusion in calculating the guaranteed portion of any enhanced death benefit associated with your contract. Please refer to the prospectus for more information. Sep Acct B – 154361 5 of 5 08/2009 SUPPLEMENT Dated August 18, 2009 To The Prospectuses Dated May 1, 2009 For ING GoldenSelect Opportunities Issued By ING USA Annuity and Life Insurance Company Through Its Separate Account B The purpose of this supplement is: To notify you of forthcoming reorganizations and a liquidation involving certain investment portfolios currently available under your variable annuity contract; and To make available additional investment portfolios to facilitate the reorganizations. PLEASE NOTE: These new investment portfolios will not be available under your variable annuity contract until a date near in time to the effective date of the reorganizations. If you have any questions, or to give us alternative allocation instructions, please call our Customer Service Center at 1-800-366-0066. PLEASE READ THIS SUPPLEMENT CAREFULLY AND KEEP IT WITH YOUR COPY OF THE PROSPECTUS FOR FUTURE REFERENCE. NOTICE OF REORGANIZATIONS Effective after the close of business on October 23, 2009 , the following investment portfolios indicated as Disappearing Portfolios will reorganize into and become part of the investment portfolios indicated as Surviving Portfolios: Disappearing Portfolios Surviving Portfolios ING LifeStyle Aggressive Growth Portfolio (Class S2) ING Retirement Growth Portfolio (ADV Class) ING LifeStyle Growth Portfolio (Class S2) ING Retirement Growth Portfolio (ADV Class) ING LifeStyle Conservative Portfolio (Class S2) ING Retirement Conservative Portfolio (ADV Class) ING LifeStyle Moderate Growth Portfolio (Class S2) ING Retirement Moderate Growth Portfolio (ADV Class) ING LifeStyle Moderate Portfolio (Class S2) ING Retirement Moderate Portfolio (ADV Class) Each of the Surviving Portfolios is an Accepted Fund. This designation is important for you to know if you purchased a living benefit rider, along with your contract, which has an asset allocation requirement and is subject to periodic rebalancing, namely, Fixed Allocation Funds Automatic Rebalancing. The latest form of the ING LifePay Plus and ING Joint LifePay Plus riders, first available for sale on and after May 1, 2009 in states where approved, offer the option to elect systematic payments, which we refer to as the Income Optimizer. Your election of the Income Optimizer is subject to restrictions and limitations, as detailed in the prospectus. In the event that you elect the Income Optimizer, the ING Retirement Growth Portfolio is not available as an Accepted Fund, but instead will be designated as an Other Fund. Opportunities - 154352 1 of 4 08/2009 Each of these Surviving Portfolios is designated as a Covered Fund for purposes of certain optional living benefit riders and the enhanced death benefits. Contract value allocated to a Covered Fund is eligible for inclusion in calculating the guaranteed portion of a benefit associated with, and subject to classifications of the investment portfolios available under, your contract. Please refer to the prospectus for more information. Important Information Regarding Reorganizations: These reorganizations will be administered pursuant to an agreement, which has been approved by the board of trustees of the Disappearing Portfolios. The reorganization agreement will also be subject to shareholder approval. If shareholder approval is obtained, it is expected that the reorganizations will take place after the close of business on October 23, 2009, resulting in a shareholder of a given Disappearing Portfolio becoming a shareholder of the corresponding Surviving Portfolio. Each shareholder will thereafter hold shares of the Surviving Portfolio having equal aggregate value as shares of the Disappearing Portfolio, and the Disappearing Portfolio will no longer be available under the contract. Unless you provide us with alternative allocation instructions, all future allocations directed to a given Disappearing Portfolio will be automatically allocated to the corresponding Surviving Portfolio. As a consequence of these reorganizations, pursuant to Fixed Allocation Funds Automatic Rebalancing, your contract value may be automatically rebalanced in order to conform to the required specified percentage of contract value in the Fixed Allocation Funds. Please refer to the prospectus for the details of Fixed Allocation Funds Automatic Rebalancing. References in the prospectus to the Disappearing Portfolios are hereby deleted, effective on and after October 26, 2009. NOTICE OF LIQUIDATION Effective after the close of business on October 23, 2009 , the following investment portfolio indicated as a Liquidating Portfolio will liquidate and the proceeds will be placed in the investment portfolio indicated as a Surviving Portfolio: Liquidating Portfolio Surviving Portfolio ING Multi-Manager International Small Cap Equity ING Intermediate Bond Portfolio (Class S) Portfolio (Class S) The Surviving Portfolio is a Fixed Allocation Fund. This designation is important for you to know if you purchased a living benefit rider, along with your contract, which has an asset allocation requirement and is subject to periodic rebalancing, namely, Fixed Allocation Funds Automatic Rebalancing. Please refer to the prospectus for the details of Fixed Allocation Funds Automatic Rebalancing. The Surviving Portfolio is designated as a Covered Fund for purposes of certain optional living benefit riders and the enhanced death benefits. Contract value allocated to a Covered Fund is eligible for inclusion in calculating the guaranteed portion of a benefit associated with, and subject to classifications of the investment portfolios available under, your contract. Please refer to the prospectus for more information. Opportunities - 154352 2 of 4 08/2009 Important Information Regarding Liquidation: The liquidation will be administered pursuant to a plan of liquidation and dissolution, which has been approved by the board of trustees of the Liquidating Portfolio. The plan is subject to shareholder approval. If shareholder approval is obtained, the liquidation and dissolution is expected to take place after the close of business on October 23, 2009. The liquidation and dissolution is being proposed because the Liquidating Portfolio has been less than popular with the public than originally anticipated, and it is not anticipated that the Liquidating Portfolio will gather substantial assets in the future. Maintaining the Liquidating Portfolio at its current asset level has been determined not to be beneficial in the long-term to shareholders. Before the liquidation date, you may reallocate contract value in the Liquidating Portfolio to another investment portfolio currently available under the contract. This reallocation will neither count as a transfer for purposes of our Excessive Trading Policy nor be subject to a transfer charge under the contract. Contract value remaining in the Liquidating Portfolio on the liquidation date will be placed in the Surviving Portfolio. Thereafter, the Liquidating Portfolio will no longer be available under the contract. Unless you provide us with alternative allocation instructions, all future allocations directed to the Liquidating Portfolio will be automatically allocated to the Surviving Portfolio. As a consequence of these liquidations, pursuant to Fixed Allocation Funds Automatic Rebalancing, your contract value may be automatically rebalanced in order to conform to the required specified percentage of contract value in the Fixed Allocation Funds. Please refer to the prospectus for the details of Fixed Allocation Funds Automatic Rebalancing. It is important to request a reallocation before the liquidation date if you do not want your contract value in the Liquidating Portfolio to be placed in the Surviving Portfolio. References in the prospectus to the Liquidating Portfolio are hereby deleted, effective on and after October 26, 2009. ADDITIONAL INVESTMENT PORTFOLIOS Effective on and after October 26, 2009 , the following additional investment portfolios will be available under your Contract – with more information about them hereby added to “Appendix B – The Investment Portfolios” (and their names hereby added to the list of available investment portfolios toward the front of the prospectus). Fund Name Investment Adviser/ Subadviser Investment Objective ING Investors Trust ING Retirement Growth Portfolio Investment Adviser: Directed Seeks a high level of total return (ADV Class) Services, LLC (consisting of capital appreciation and Asset Allocation Consultants: income) consistent with a level of risk that ING Investment Management Co. can be expected to be greater than that of ING Retirement Moderate Growth Portfolio. ING Retirement Conservative Portfolio Investment Adviser: Directed Seeks a high level of total return (ADV Class) Services, LLC (consisting of capital appreciation and Asset Allocation Consultants: income) consistent with a conservative ING Investment Management Co. level of risk relative to the other ING Retirement Portfolios. Opportunities - 154352 3 of 4 08/2009 ING Retirement Moderate Growth Investment Adviser: Directed Seeks a high level of total return Portfolio (ADV Class) Services, LLC (consisting of capital appreciation and Asset Allocation Consultants: income) consistent with a level of risk that ING Investment Management Co. can be expected to be greater than that of ING Retirement Moderate Portfolio but less than that of ING Retirement Growth Portfolio. ING Retirement Moderate Portfolio Investment Adviser: Directed Seeks a high level of total return (ADV Class) Services, LLC (consisting of capital appreciation and Asset Allocation Consultants: income) consistent with a level of risk that ING Investment Management Co. can be expected to be greater than that of ING Retirement Conservative Portfolio but less than that of ING Retirement Moderate Growth Portfolio. Each of the above investment portfolios is an Accepted Fund. This designation is important for you to know if you purchased a living benefit rider, along with your contract, which has an asset allocation requirement and is subject to periodic rebalancing, namely, Fixed Allocation Funds Automatic Rebalancing. These investment portfolios are hereby added to the list of currently available Accepted Funds, wherever appropriate. Each of the above investment portfolios is designated as a Covered Fund for purposes of certain optional living benefit riders and the enhanced death benefits. Contract value allocated to a Covered Fund is eligible for inclusion in calculating the guaranteed portion of a benefit associated with, and subject to classifications of the investment portfolios under, your contract. Please refer to the prospectus for more information. Opportunities - 154352 4 of 4 08/2009 PART C - OTHER INFORMATION ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS Financial Statements: (a)(1) Incorporated in Part A: Condensed Financial Information (2) Incorporated in Part B: Financial Statements of ING USA Annuity and Life Insurance Company: - Report of Independent Registered Public Accounting Firm - Statements of Operations for the years ended December 31, 2008, 2007, and 2006 - Balance Sheets as of December 31, 2008 and 2007 - Statements of Changes in Shareholder’s Equity for the years ended December 31, 2008, 2007, and 2006 - Statements of Cash Flows for the years ended December 31, 2008, 2007, and 2006 - Notes to Financial Statements Financial Statements of Separate Account B: - Report of Independent Registered Public Accounting Firm - Statements of Assets and Liabilities as of December 31, 2008 - Statements of Operations for the year ended December 31, 2008 - Statements of Changes in Net Assets for the years ended December 31, 2008 and 2007 - Notes to Financial Statements Condensed Financial Information (Accumulation Unit Values) Exhibits: (b) (1) Resolution of the board of directors of Depositor authorizing the establishment of the Registrant, incorporated herein by reference to Post-Effective Amendment No. 29 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 1999 (File Nos. 033-23351, 811-05626). (2) Not Applicable. (3) a. Distribution Agreement between the Depositor and Directed Services, Inc., incorporated herein by reference to Post-Effective Amendment No. 29 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 1999 (File Nos. 033-23351, 811- 05626). b. Form of Dealers Agreement, incorporated herein by reference to Post-Effective Amendment No. 29 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 1999 (File Nos. 033-23351, 811-05626). c. Organizational Agreement, incorporated herein by reference to Post-Effective Amendment No. 29 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 1999 (File Nos. 033-23351, 811-05626). d. Addendum to Organizational Agreement, incorporated herein by reference to Post- Effective Amendment No. 29 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 1999 (File Nos. 033-23351, 811-05626). e. Expense Reimbursement Agreement, incorporated herein by reference to Post-Effective Amendment No. 29 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 1999 (File Nos. 033-23351, 811-05626). f. Form of Assignment Agreement for Organizational Agreement, incorporated herein by reference to Post-Effective Amendment No. 29 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 1999 (File Nos. 033-23351, 811- 05626). g. Amendment to the Distribution Agreement between ING USA and Directed Services Inc. incorporated herein by reference to Post-Effective Amendment No. 26 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 13, 2004 (File Nos. 333-28755, 811-05626). h. Form of Rule 22c-2 Agreement, incorporated herein by reference to Post-Effective Amendment No. 10 to a Registration Statement on Form N-4 for ReliaStar Life Insurance Company of New York Separate Account NY-B filed with the Securities and Exchange Commission on April 12, 2007 (File Nos. 333-115515, 811-07935). (4) a. Individual Deferred Combination Variable and Fixed Annuity Contract (GA-IA-1074), incorporated herein by reference to Post-Effective Amendment No. 7 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on October 2, 2000 (File Nos. 333- 28679, 811-5626). b. Group Deferred Combination Variable and Fixed Annuity Contract (GA-MA-1074), incorporated herein by reference to Post-Effective Amendment No. 7 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on October 2, 2000 (File Nos. 333- 28679, 811-5626). c. Individual Deferred Variable Annuity Contract (GA-IA-1075), incorporated herein by reference to Post-Effective Amendment No. 7 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on October 2, 2000 (File Nos. 333-28679, 811- 05626). d. Deferred Combination Variable and Fixed Annuity Certificate (GA-CA-1074), incorporated herein by reference to Post-Effective Amendment No. 7 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on October 2, 2000 (File Nos. 333- 28679, 811-05626). e. Individual Retirement Annuity Rider (GA-RA-1009) (12/02), incorporated herein by reference to Post-Effective Amendment No. 34 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 15, 2003 (File Nos. 033-23351, 811- 05626). f. ROTH Individual Retirement Annuity Rider (GA-RA-1038) (12/02), incorporated herein by reference to Post-Effective Amendment No. 34 to a Registration Statement on Form N- 4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 15, 2003 (File Nos. 033-23351, 811- 05626). g. Minimum Guaranteed Income Benefit Rider (IU-RA-1047) (01/05), incorporated herein by reference to Post-Effective Amendment No. 31 to a Registration Statement on Form N- 4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on or about April 20, 2005 (File Nos. 333-28755, 811-05626). h. Minimum Guaranteed Income Benefit Rider (IU-RA-1047) (08-06), incorporated herein by reference to Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on May 9, 2006 (File Nos. 333-133944, 811-05626). i. Minimum Guaranteed Withdrawal Benefit Rider (GA-RA-1048) (01/02), incorporated herein by reference to Post-Effective Amendment No. 25 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on February 13, 2004 (File Nos. 333- 28679, 811-05626). j. Minimum Guaranteed Withdrawal Benefit Rider with Reset Option (ING PrincipalGuard) (GA-RA-1046), incorporated herein by reference to Post-Effective Amendment No. 25 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on or about February 13, 2004 (File Nos. 333-28755, 811-05626). k. Minimum Guaranteed Withdrawal Benefit Rider with Reset Option (ING LifePay) (IU- RA-3023), incorporated herein by reference to Post-Effective Amendment No. 32 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on August 5, 2005 (File Nos. 333-28755, 811-05626). l. Minimum Guaranteed Withdrawal Benefit Rider with Reset Option (ING Joint LifePay) (IU-RA-3029), incorporated herein by reference to Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on May 9, 2006 (File Nos. 333-133944, 811- 05626). m. Excluded Funds Endorsement (Inforce Riders), incorporated herein by reference to Post- Effective Amendment No.12 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 23, 2001 (File Nos. 333-28769, 811-05626). n. Guaranteed Death Benefit Transfer Endorsement No. 1 (7% Solution Enhanced) (GA-RA- 1044-1) (01/02), incorporated herein by reference to Post-Effective Amendment No. 25 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on February 13, 2004 (File Nos. 333-28679, 811-05626). o. Guaranteed Death Benefit Transfer Endorsement No. 2 (Ratchet Enhanced) (GA-RA- 1044-2) (10/03), incorporated herein by reference to Post-Effective Amendment No. 25 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on February 13, 2004 (File Nos. 333-28679, 811-05626). p. Guaranteed Death Benefit Transfer Endorsement No. 3 (Standard) (GA-RA-1044-3) (01/02), incorporated herein by reference to Post-Effective Amendment No. 25 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on February 13, 2004 (File Nos. 333-28679, 811-05626). q. Guaranteed Death Benefit Transfer Endorsement No. 4 (Max 7 Enhanced) (GA-RA-1044- 4) (10/03), incorporated herein by reference to Post-Effective Amendment No. 25 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on February 13, 2004 (File Nos. 333-28679, 811-05626). r. Guaranteed Death Benefit Transfer Endorsement No. 5 (Base Death Benefit), incorporated herein by reference to Post-Effective Amendment No. 25 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on February 13, 2004 (File Nos. 333-28679, 811-05626). s. Guaranteed Death Benefit Transfer Endorsement No. 6 (Inforce Contracts) (GA-RA- 1044-6) (01/02), incorporated herein by reference to Post-Effective Amendment No. 25 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on February 13, 2004 (File Nos. 333-28679, 811-05626). t. Earnings Enhancement Death Benefit Rider (GA-RA-1086), incorporated herein by reference to Post-Effective Amendment No. 10 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 24, 2001 (File Nos. 333-28679, 811-5626). u. Simple Retirement Account Rider (GA-RA-1026) (12/02), incorporated herein by reference to Post-Effective Amendment No. 34 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 15, 2003 (File Nos. 033-23351, 811- 05626). v. 403(b) Rider (GA-RA-1040), incorporated herein by reference to Post-Effective Amendment No. 34 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 15, 2003 (File Nos. 033-23351, 811-05626). w. Section 72 Rider (GA-RA-1001) (12/94), incorporated herein by reference to Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on May 9, 2006 (File Nos. 333-133944, 811-05626). x. Section 72 Rider (GA-RA-1002) (12/94), incorporated herein by reference to Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on May 9, 2006 (File Nos. 333-133944, 811-05626). y. Nursing Home Waiver for Group Certificates (GA-RA-1003) (12/94), incorporated herein by reference to Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on May 9, 2006 (File Nos. 333-133944, 811-05626). z. Nursing Home Waiver for Individual Certificates (GA-RA-1004) (12/94), incorporated herein by reference to Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on May 9, 2006 (File Nos. 333-133944, 811-05626). aa. Minimum Guaranteed Withdrawal Benefit Rider with Automatic Reset (ING LifePay Plus)(IU-RA-3061), incorporated herein by reference to Post-Effective Amendment No. 40 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on July 25, 2007 (File Nos. 333-28679, 811-05626). bb. Minimum Guaranteed Withdrawal Benefit Rider with Automatic Reset (ING Joint LifePay Plus) (IU-RA-3062), incorporated herein by reference to Post-Effective Amendment No. 40 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on July 25, 2007 (File Nos. 333-28679, 811-05626). cc. Combination Minimum Guaranteed Withdrawal Benefit and Death Benefit Rider (ING LifePay Plus) (IU-RA-3077),incorporated herein by reference to Post-Effective Amendment No. 43 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 7, 2008 (File Nos. 333-28755, 811-05626). dd. Combination Minimum Guaranteed Withdrawal Benefit and Death Benefit Rider (ING Joint LifePay Plus) (IU-RA-3078), incorporated herein by reference to Post-Effective Amendment No. 43 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 7, 2008 (File Nos. 333-28755, 811-05626). ee. Combination Minimum Guaranteed Withdrawal Benefit and Death Benefit Rider (ING LifePay Plus) (IU-RA-4010) (05-01-2009), incorporated herein by reference to Post Effective Amendment No. 50 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 2009 (File Nos. 333-28679, 811-05626). ff. Combination Minimum Guaranteed Withdrawal Benefit and Death Benefit Rider (ING Joint LifePay Plus) (IU-RA-4011) (05-01-2009), incorporated herein by reference to Post Effective Amendment No. 50 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 2009 (File Nos. 333-28679, 811-05626). (5) a. Deferred Variable Annuity Application, incorporated herein by reference to Post- Effective Amendment No. 34 to a Registration Statement on Form N-4 for Variable Annuity Account C of ING Life Insurance and Annuity Company as filed with the Securities and Exchange Commission on October 26, 2005 (File Nos. 333-28755, 811- 05626). b. Group Deferred Combination Variable and Fixed Annuity Enrollment Form, incorporated herein by reference to Post-Effective Amendment No. 4 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on January 27, 2000 (File Nos. 333-28679, 811-05626). c. Deferred Variable Annuity Application (137098) (08-21-2006), incorporated herein by reference to Post-Effective Amendment No. 37 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on August 21, 2006 (File Nos. 333-28679, 811- 05626). d. Deferred Variable Annuity Application (137098) (04-28-2008), incorporated herein by reference to Post-Effective Amendment No. 43 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 7, 2008 (File Nos. 333-28755, 811-05626). e. Deferred Variable Annuity Application (137098) (10-6-2008), incorporated herein by reference to Post-Effective Amendment No. 41 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on September 10, 2008 (File Nos. 333-28769, 811- 05626). f. Deferred Variable Annuity Application (137098) (1/12/2009), incorporated herein by reference to Post-Effective Amendment No. 42 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 29, 2008 (File Nos. 333-28769, 811- 05626). g. Deferred Variable Annuity Application (151279) (05-01-2009), incorporated herein by reference to Post Effective Amendment No. 50 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 2009 (File Nos. 333-28679, 811- 05626). (6) a. Amendment to Articles of Incorporation Providing for the Name Change of Golden American Life Insurance Company, dated (11/21/03), incorporated herein by reference to Post-Effective Amendment No. 1 to a Registration Statement on Form S-1 for ING USA Annuity and Life Insurance Company filed with the Securities and Exchange Commission on April 9, 2007 (File No. 333-133076). b. Amendment to Articles of Incorporation Providing for the Change in Purpose and Powers of ING USA Annuity and Life Insurance Company, dated (03/04/04), incorporated herein by reference to Post-Effective Amendment No. 1 to a Registration Statement on Form S-1 for ING USA Annuity and Life Insurance Company filed with the Securities and Exchange Commission on April 9, 2007 (File No. 333-133076). c. Amended and Restated By-Laws of ING USA Annuity and Life Insurance Company, dated (12/15/04), incorporated herein by reference to Post-Effective Amendment No. 1 to a Registration Statement on Form S-1 for ING USA Annuity and Life Insurance Company filed with the Securities and Exchange Commission on April 9, 2007 (File No. 333- 133076). d. Resolution of the board of directors for Power of Attorney, dated 04/23/99, incorporated herein by reference to Post-Effective Amendment No. 12 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 23, 1999 (File Nos. 033-59261, 811- 05626). e. Articles of Merger and Agreement and Plan of Merger of USGALC, ULAIC, ELICI into GALIC and renamed ING USA Annuity and Life Insurance Company, dated 06/25/03, incorporated herein by reference to Post-Effective Amendment No. 25 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on February 13, 2004 (File Nos. 333-28679, 811-05626). (7) Not Applicable. (8) a. Service Agreement by and between Golden American Life Insurance Company and Directed Services, Inc., incorporated herein by reference to Post-Effective Amendment No. 28 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on May 1, 1998 (File Nos. 033-23351, 811-05626). b. Asset Management Agreement between Golden American Life Insurance Company and ING Investment Management LLC, incorporated herein by reference to Post-Effective Amendment No. 29 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 30, 1999 (File Nos. 033-23351, 811-05626). c. Participation Agreement by and between AIM Variable Insurance Funds, Inc., Golden American Life Insurance Company and Directed Services, Inc., incorporated herein by reference to Post-Effective Amendment No. 32 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 26, 2002 (File Nos. 033-23351, 811- 05626). d. Amendment to Participation Agreement by and between AIM Variable Insurance Funds, Inc., Golden American Life Insurance Company and Directed Services, Inc., incorporated herein by reference to Post-Effective amendment No. 8 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 2, 2005 (File Nos. 333- 33914, 811-05626). e. Participation Agreement between Golden American Life Insurance Company, American Funds Insurance Series and Capital Research and Management Company, incorporated herein by reference to Pre-Effective Amendment No. 1 to a Registration Statement on Form N-6 for ReliaStar Life Insurance Company Select * Life Variable Account filed with the Securities and Exchange Commission on July 17, 2003 (File Number 333- 105319). f. Amendment No. 1 to the Business Agreement dated April 30, 2003, as amended on January 1, 2008 by and among ING USA Annuity and Life Insurance Company, ReliaStar Life Insurance Company, ReliaStar Life Insurance Company of New York, Security Life of Denver Insurance Company, ING Life Insurance and Annuity Company, ING America Equities, Inc., ING Financial Advisers, LLC, Directed Services LLC, American Funds Distributors and Capital Research and Management Company, incorporated herein by reference to Pre-Effective Amendment No. 1 to the Form N-6 Registration Statement of Security Life of Denver Insurance Company and its Security Life Separate Account L1, File No. 333-153337, as filed on November 14, 2008. g. Fourth Amended and Restated Fund Participation Agreement entered into as of the 28 th day of April, 2008, as amended among ING USA Annuity and Life Insurance Company, ReliaStar Life Insurance Company of New York, ING Investors Trust, Directed Services, LLC, ING Funds Distributor, LLC, American Funds Insurance Series and Capital Research and Management Company, incorporated herein by reference to Post-Effective Amendment No. 14 to a Registration Statement on Form N-4 for ReliaStar Life Insurance Company of New York Separate Account NY-B filed with the Securities and Exchange Commission on December 29, 2008 (File Nos. 333-115515, 811-07935). h. Participation Agreement entered into as of the 15 th day of September, 2008, as amended among ING USA Annuity and Life Insurance Company, ReliaStar Life Insurance Company of New York, ING Investors Trust, Directed Services, LLC, ING Funds Distributor, LLC, American Funds Insurance Series and Capital Research and Management Company, incorporated herein by reference to Post-Effective Amendment No. 14 to a Registration Statement on Form N-4 for ReliaStar Life Insurance Company of New York Separate Account NY-B filed with the Securities and Exchange Commission on December 29, 2008 (File Nos. 333-115515, 811-07935). i. Participation Agreement by and between ING Investors Trust, Golden American Life Insurance Company and Directed Services, Inc., incorporated herein by reference to Post- Effective Amendment No. 6 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 21, 2005 (File Nos. 333-70600, 811-05626). j. Rule 22c-2 Agreement dated no later than April 16, 2007 is effective October 16, 2007 between ING Funds Services, LLC, ING Life Insurance and Annuity Company, ING National Trust, ING USA Annuity and Life Insurance Company, ReliaStar Life Insurance Company, ReliaStar Life Insurance Company of New York, Security Life of Denver Insurance Company and Systematized Benefits Administrators Inc., incorporated by reference to Post-Effective Amendment No. 50 to Registration Statement on Form N-4 (File No. 033-75962), as filed on June 15, 2007. k. Participation Agreement by and between ING Variable Insurance Trust, Golden American Life Insurance Company and ING Mutual Funds Management Co. LLC and ING Funds Distributor, Inc., incorporated herein by reference to Post-Effective amendment No. 32 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 26, 2002 (File Nos. 033-23351, 811-05626). l. Participation Agreement by and between Pilgrim Variable Products Trust, Golden American Life Insurance Company and Directed Services, Inc., incorporated herein by reference to Post-Effective amendment No. 32 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 26, 2002 (File Nos. 033-23351, 811- 05626). m. Amendment to Participation Agreement by and between ING Variable Products Trust, Golden American Life Insurance Company, ING Investments, LLC and ING Funds Distributor, Inc., incorporated herein by reference to Post-Effective amendment No. 8 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 2, 2005 (File Nos. 333-33914, 811-05626). n. Participation Agreement by and between ING Variable Portfolios, Inc., Golden American Life Insurance Company and Directed Services, Inc., incorporated herein by reference to Post-Effective Amendment No. 1 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 29, 2002 (File Nos. 333-70600, 811-05626). o. Participation Agreement by and between Portfolio Partners, Inc., Golden American Life Insurance Company and Directed Services, Inc. incorporated herein by reference to Post- Effective Amendment No. 1 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 29, 2002 (File Nos. 333-70600, 811-05626). p. Amendment to Participation Agreement by and between Portfolio Partners, Inc., Golden American Life Insurance Company and Directed Services, Inc., incorporated herein by reference to Post-Effective Amendment No. 1 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 29, 2002 (File Nos. 333-70600, 811- 05626). q. Second Amendment to Participation Agreement by and between ING Partners, Inc., Golden American Life Insurance Company, ING Life Insurance and Annuity Company and ING Financial Advisers, LLC, incorporated herein by reference to Post-Effective amendment No. 8 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 2, 2005 (File Nos. 333-33914, 811-05626). r. Participation Agreement by and between Fidelity Distributors Corporation, Golden American Life Insurance Company and Variable Insurance Products Funds, incorporated herein by reference to Post-Effective amendment No. 32 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 26, 2002 (File Nos. 033-23351, 811- 05626). s. Amendment to Participation Agreement by and between Fidelity Distributors Corporation and ING USA Annuity and Life Insurance Company, incorporated herein by reference to Post-Effective amendment No. 8 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 2, 2005 (File Nos. 333-33914, 811-05626). t. Rule 22c-2 Agreement dated no later than April 16, 2007 and is effective as of October 16, 2007 between Fidelity Distributors Corporation, ING Life Insurance and Annuity Company, ING National Trust, ING USA Annuity and Life Insurance Company, ReliaStar Life Insurance Company, ReliaStar Life Insurance Company of New York, Security Life of Denver Insurance Company and Systematized Benefits Administrators Inc., incorporated by reference to Post-Effective Amendment No. 50 to Registration Statement on Form N-4 (File No. 033-75962), as filed on June 15, 2007. u. Letter Agreement dated May 16, 2007 and effective July 2, 2007 between ING USA Annuity and Life Insurance Company, Variable Insurance Products Fund, Variable Insurance Products Fund II, Variable Insurance Products Fund III, Variable Insurance Products Fund V and Fidelity Distributors Corporation, incorporated by reference to Post- Effective Amendment No. 3 to the Registration Statement on Form N-4 (File No. 333- 117260), as filed on October 23, 2007. v. Amended and Restated Participation Agreement as of December 30, 2005 by and among Franklin Templeton Variable Insurance Products Trust/Templeton Distributors, Inc., ING Life Insurance and Annuity Company, ING USA Annuity and Life Insurance Company, ReliaStar Life Insurance Company, ReliaStar Life Insurance Company of New York and Directed Services, Inc., incorporated herein by reference to Post Effective Amendment No. 17 of a Registration Statement on Form N-4 for ReliaStar Life Insurance Company Separate Account NY-B filed with the Securities and Exchange Commission on February 1, 2007 (File Nos. 333-85618, 811-07935). w. Participation Agreement between Golden American Life Insurance Company, INVESCO Variable Investment Funds, Inc., INVESCO Funds Group, Inc. and INVESCO Distributors, Inc. incorporated herein by reference to Post-Effective amendment No. 1 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 29, 2002 (File Nos. 333-63692, 811-05626). x. Participation Agreement by and between PIMCO Variable Insurance Trust, Golden American Life Insurance Company and PIMCO Funds Distributors LLC, incorporated herein by reference to Pre-Effective Amendment No. 1 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on June 23, 2000 (File Nos. 333-33914, 811- 05626). y. Amendment to Participation Agreement by and between PIMCO Variable Insurance Trust, Golden American Life Insurance Company and PIMCO Funds Distributors LLC, incorporated herein by reference to Post-Effective Amendment No. 8 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 2, 2005 (File Nos. 333-33914, 811-05626). z. Participation Agreement by and between Pioneer Variable Contracts Trust, Golden American Life Insurance Company, Pioneer Investment Management, Inc. and Pioneer Funds Distributor, Inc., incorporated herein by reference to Post-Effective Amendment No. 32 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 26, 2002 (File Nos. 033-23351, 811-05626). aa. Participation Agreement by and between Liberty Variable Investment Trust, Golden American Life Insurance Company, incorporated herein by reference to Post-Effective Amendment No. 8 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 2, 2005 (File Nos. 333-33914, 811-05626). bb. Participation Agreement by and between PIMCO Variable Insurance Trust, Golden American Life Insurance Company, incorporated herein by reference to Post-Effective Amendment No. 1 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on June 24, 2000 (File Nos. 333-33914, 811-05626). cc. Amendment to Participation Agreement by and between PIMCO Variable Insurance Trust, Golden American Life Insurance Company, incorporated herein by reference to Post-Effective Amendment No. 8 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 2, 2005 (File Nos. 333-33914, 811-05626). dd. Participation Agreement by and between Pioneer Variable Contracts Trust, Golden American Life Insurance Company, incorporated herein by reference to Post-Effective Amendment No. 32 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 26, 2002 (File Nos. 033-23351, 811-05626). ee. Participation Agreement by and between ProFunds, Golden American Life Insurance Company and ProFunds Advisors LLC, incorporated herein by reference to Post-Effective Amendment No. 8 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 2, 2005 (File Nos. 333-33914, 811-05626). ff. Amendment to Participation Agreement by and between ProFunds, Golden American Life Insurance Company and ProFunds Advisors LLC, incorporated herein by reference to Post-Effective Amendment No. 8 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 2, 2005 (File Nos. 333-33914, 811-05626). gg. Participation Agreement by and between Prudential Series Fund, Inc., Golden American Life Insurance Company Prudential Insurance Company of America and Prudential Investment Management Services LLC, incorporated herein by reference to Pre-Effective Amendment No. 1 to a Registration Statement on Form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on June 23, 2000 (File Nos. 333-33914, 811-05626). hh. Amendment to Participation Agreement by and between Prudential Series Fund, Inc., Golden American Life Insurance Company, Prudential Insurance Company of America and Prudential Investment Management Services LLC, incorporated herein by reference to Post-Effective Amendment No. 9 to a Registration Statement on form N-4 for Golden American Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on December 15, 2000 (File Nos. 333-28679, 811-05626). ii. Amendment to Participation Agreement as of June 5, 2007 by and between Franklin Templeton Variable Insurance Products Trust, Franklin/Templeton Distributors, Inc., ING Life Insurance and Annuity Company, ING USA Annuity and Life Insurance Company, ReliaStar Life Insurance Company, ReliaStar Life Insurance Company of New York, and Directed Services, LLC, incorporated herein by reference to Pre-Effective Amendment No. 1 to a Registration Statement on Form N-4 for ReliaStar Life Insurance Company of New York Separate Account NY-B filed with the Securities and Exchange Commission on July 6, 2007 (File Nos. 333-139695, 811-07935). jj. Rule 22c-2 Agreement dated no later than April 16, 2007, and is effective as of October 16, 2007, between BlackRock Distributors, Inc., on behalf of and as distributor for the BlackRock Funds and the Merrill Lynch family of funds and ING Life Insurance and Annuity Company, ING National Trust, ING USA Annuity and Life Insurance Company, ReliaStar Life Insurance Company, ReliaStar Life Insurance Company of New York, Security Life of Denver Insurance Company and Systematized Benefits Administrators Inc. incorporated by reference to Post-Effective Amendment No. 43 to a Registration Statement on Form N-4 for ING USA Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission on April 7, 2008 (File Nos. 333-28755, 811-05626). kk. Participation Agreement dated April 25, 2008, by and among BlackRock Variable Series Funds, Inc., BlackRock Distributors, Inc., ING USA Annuity and Life Insurance Company and ReliaStar Life Insurance Company of New York, incorporated herein by reference to Post-Effective Amendment No. 26 to the Form N-6 Registration Statement of ReliaStar Life Insurance Company and its Select*Life Separate Account, filed on April 7, 2009; file No. 33-57244. ll. Amendment to Participation Agreement dated April 25, 2008, by and among BlackRock Variable Series Funds, Inc., BlackRock Distributors, Inc., ING USA Annuity and Life Insurance Company and ReliaStar Life Insurance Company of New York, incorporated herein by reference to Post-Effective Amendment No. 26 to the Form N-6 Registration Statement of ReliaStar Life Insurance Company and its Select*Life Separate Account, filed on April 7, 2009; file No. 33-57244. mm. Amendment No. 1 to the Participation Agreement dated April 25, 2008, by and between BlackRock Variable Series Funds, Inc., BlackRock Investments, LLC and ING USA Annuity and Life Insurance Company and ReliaStar Life Insurance Company of New York, incorporated herein by reference to Post-Effective Amendment No. 27 to the Form N-6 Registration Statement of ReliaStar Life Insurance Company and its Select*Life Separate Account, filed on August 18, 2009; file No. 33-57244. nn. Administrative Services Agreement dated April 25, 2008, by and among BlackRock Advisors, LLC and ING USA Annuity and Life Insurance Company and ReliaStar Life Insurance Company of New York, incorporated herein by reference to Post-Effective Amendment No. 26 to the Form N-6 Registration Statement of ReliaStar Life Insurance Company and its Select*Life Separate Account, filed on April 7, 2009; file No. 33-57244. oo. Amendment to Administrative Services Agreement dated April 25, 2008, by and among BlackRock Advisors, LLC and ING USA Annuity and Life Insurance Company and ReliaStar Life Insurance Company of New York, incorporated herein by reference to Post-Effective Amendment No. 26 to the Form N-6 Registration Statement of ReliaStar Life Insurance Company and its Select*Life Separate Account, filed on April 7, 2009; file No. 33-57244. pp. First Amendment to Administrative Services Agreement dated April 25, 2008, by and among BlackRock Variable Series Funds, Inc., BlackRock Investments, LLC and ING USA Annuity and Life Insurance Company and ReliaStar Life Insurance Company of New York, incorporated herein by reference to Post-Effective Amendment No. 27 to the Form N-6 Registration Statement of ReliaStar Life Insurance Company and its Select*Life Separate Account, filed on August 18, 2009; file No. 33-57244. qq. Rule 22c-2 Agreement dated no later than April 16, 2007 and is effective as of October 16, 2007 between AIM Investment Services, Inc., ING Life Insurance and Annuity Company, ReliaStar Life Insurance Company, ReliaStar Life Insurance Company of New York, Security Life of Denver Insurance Company and Systematized Benefits Administrators Inc., incorporated by reference to Post-Effective Amendment No. 50 to Registration Statement on Form N-4 (File No. 033-75962), as filed on June 15, 2007. rr. Rule 22c-2 Agreement dated April 16, 2007 and is effective as of October 16, 2007 among Columbia Management Services, Inc., ING Life Insurance and Annuity Company, ING National Trust, ING USA Annuity and Life Insurance Company, ReliaStar Life Insurance Company, ReliaStar Life Insurance Company of New York, Security Life of Denver Life Insurance Company and Systematized Benefits Administrators Inc., incorporated by reference to Post-Effective Amendment No. 3 to Registration Statement on Form N-4 (File No. 333-134760), as filed on July 27, 2007. (9) Opinion and Consent of Counsel, attached. (10) Consent of Independent Registered Public Accounting Firm, attached. (11) Not Applicable. (12) Not Applicable. (13) Powers of Attorney, incorporated herein by reference to Post-Effective Amendment No. 51 to a Registration Statement on Form N-4 for ING Annuity and Life Insurance Company Separate Account B filed with the Securities and Exchange Commission, File No. 333-28679, as filed on June 25, 2009. ITEM 25: DIRECTORS AND OFFICERS OF THE DEPOSITOR Name Principal Business Address Position(s) with Depositor Thomas J. McInerney* One Orange Way President, Director and Chairman Windsor, CT 06095-4774 Bridget M. Healy* 230 Park Avenue, 13 th Floor Director New York, NY 10169 Donald W. Britton* 5780 Powers Ferry Road Director Atlanta, GA 30327-4390 Name Principal Business Address Position(s) with Depositor Catherine H. Smith* One Orange Way Director and Senior Vice President Windsor, CT 06095-4774 David A. Wheat* 5780 Powers Ferry Road Chief Financial Officer, Director Atlanta, GA 30327-4390 and Executive Vice President Steven T. Pierson* 5780 Powers Ferry Road Senior Vice President and Chief Atlanta, GA 30327-4390 Accounting Officer Boyd G. Combs 5780 Powers Ferry Road Senior Vice President, Tax Atlanta, GA 30327-4390 Daniel P. Mulheran, Sr. 20 Washington Avenue South Senior Vice President Minneapolis, MN 55401 Sue Collins One Orange Way Senior Vice President Windsor, CT 06095-4774 Stephen J. Preston 1475 Dunwoody Drive Senior Vice President West Chester, PA 19380 David S. Pendergrass 5780 Powers Ferry Road Senior Vice President and Treasurer Atlanta, GA 30327-4390 Francis de Regnaucourt 1475 Dunwoody Drive Vice President and Appointed West Chester, PA 19380 Actuary Linda E. Senker 1475 Dunwoody Drive Vice President and Chief West Chester, PA 19380 Compliance Officer Joy M. Benner 20 Washington Avenue South Secretary Minneapolis, MN 55401 *Principal delegated legal authority to execute this registration statement pursuant to Powers of Attorney, Exhibit 13, attached. ITEM 26: PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH THE DEPOSITOR OR REGISTRANT Incorporated herein by reference to Item 26 in Post-Effective Amendment No. 39 to Registration Statement on Form N-4 for ING Life Insurance and Annuity Company Variable Annuity Account B (Form No. 033-75996), as filed with the Securities and Exchange Commission on July 16, 2009. ITEM 27: NUMBER OF CONTRACT OWNERS As of June 30, 2009 there are 100,735 qualified contract owners and 50,742 non-qualified contract owners. ITEM 28: INDEMNIFICATION ING USA shall indemnify (including therein the prepayment of expenses) any person who is or was a director, officer or employee, or who is or was serving at the request of ING USA as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise for expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him with respect to any threatened, pending or completed action, suit or proceedings against him by reason of the fact that he is or was such a director, officer or employee to the extent and in the manner permitted by law. ING USA may also, to the extent permitted by law, indemnify any other person who is or was serving ING USA in any capacity. The Board of Directors shall have the power and authority to determine who may be indemnified under this paragraph and to what extent (not to exceed the extent provided in the above paragraph) any such person may be indemnified. A corporation may procure indemnification insurance on behalf of an individual who is or was a director of the corporation. Consistent with the laws of the State of Iowa , ING America Insurance Holdings, Inc. maintains a Professional Liability and fidelity bond insurance policy issued by an international insurer. The policy covers ING America Insurance Holdings, Inc. and any company in which ING America Insurance Holdings, Inc. has a controlling financial interest of 50% or more. These policies include the principal underwriter, as well as, the depositor. Additionally, the parent company of ING America Insurance Holdings, Inc., ING Groep N.V., maintains excess umbrella coverage with limits in excess of €125,000,000. The policies provide for the following types of coverage: errors and omissions/professional liability, directors and officers, employment practices, fiduciary and fidelity. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the Registrant, as provided above or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification by the Depositor is against public policy, as expressed in the Securities Act of 1933, and therefore may be unenforceable. In the event that a claim of such indemnification (except insofar as it provides for the payment by the Depositor of expenses incurred or paid by a director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted against the Depositor by such director, officer or controlling person and the SEC is still of the same opinion, the Depositor or Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by the Depositor is against public policy as expressed by the Securities Act of 1933 and will be governed by the final adjudication of such issue. ITEM 29: PRINCIPAL UNDERWRITER (a) At present, Directed Services LLC, the Registrant’s Distributor, serves as principal underwriter for all contracts issued by: ING USA Annuity and Life Insurance Company through its Separate Accounts A, B and EQ, and Alger Separate Account A; and ReliaStar Life Insurance Company of New York through its Separate Account NY-B. (b) The following information is furnished with respect to the principal officers and directors of Directed Services LLC, the Registrant’s Distributor. Name Principal Business Address Positions and Offices with Underwriter Ann H. Hughes 1475 Dunwoody Drive, Floor 2B President and Director West Chester, PA 19380-1478 Shaun P. Mathews 10 State House Square Director and Executive Vice President Hartford, CT 06103 William L. Lowe One Orange Way Director Windsor, CT 06095 Richard E. Gelfand 1475 Dunwoody Drive Chief Financial Officer West Chester, PA 19380-1478 Kimberly A. Anderson 7oubletree Ranch Road, Senior Vice President Scottsdale, AZ 85258 Michael J. Roland 7oubletree Ranch Road, Senior Vice President Scottsdale, AZ 85258 Name Principal Business Address Positions and Offices with Underwriter Stanley D. Vyner 230 Park Avenue, 13th Floor Senior Vice President New York, NY 10169 William D. Wilcox One Orange Way Chief Compliance Officer Windsor, CT 06095 Ernest C’Debaca 7oubletree Ranch Road Investment Advisor Chief Compliance Scottsdale, AZ 85258 Officer and Senior Vice President Julius A. Drelick, III 7oubletree Ranch Road Vice President Scottsdale, AZ 85258 William A. Evans 10 State House Square Vice President Hartford, CT 06103 Heather H. Hackett 230 Park Avenue, 13th Floor Vice President New York, NY 10169 Todd R. Modic 7oubletree Ranch Road Vice President Scottsdale, AZ 85258 David S. Pendergrass 7oubletree Ranch Road Vice President and Treasurer Scottsdale, AZ 85258 Spencer T. Shell 5780 Powers Ferry Road Vice President and Assistant Treasurer Atlanta, GA 30327-4390 Joy M. Benner 20 Washington Avenue South Secretary Minneapolis, MN 55401 Randall K. Price 20 Washington Avenue South Assistant Secretary Minneapolis, MN 55401 Susan M. Vega 20 Washington Avenue South Assistant Secretary Minneapolis, MN 55401 G. Stephen Wastek 7oubletree Ranch Road Assistant Secretary Scottsdale, AZ 85258 Bruce Kuennen 1475 Dunwoody Drive Attorney-in-Fact West Chester, PA 19380-1478 (c) 2008 Net Underwriting Name of Principal Discounts and Compensation Brokerage Underwriter Commission on Redemption Commissions Compensation Directed Services LLC $603,785,462 $0 $0 $0 ITEM 30: LOCATION OF ACCOUNTS AND RECORDS All accounts, books and other documents required to be maintained by Section 31(a) of the 1940 Act and the rules under it relating to the securities described in and issued under this Registration Statement are maintained by the Depositor and located at: 909 Locust Street, Des Moines, Iowa 50309, 1475 Dunwoody Drive, West Chester, PA 19380 and at 5780 Powers Ferry Road, N.W., Atlanta, GA 30327-4390. ITEM 31: MANAGEMENT SERVICES None. ITEM 32: UNDERTAKINGS (a) Registrant hereby undertakes to file a post-effective amendment to this registration statement as frequently as it is necessary to ensure that the audited financial statements in the registration statement are never more than 16 months old so long as payments under the variable annuity contracts may be accepted; (b) Registrant hereby undertakes to include either (1) as part of any application to purchase a contract offered by the prospectus, a space that an applicant can check to request a Statement of Additional Information, or (2) a post card or similar written communication affixed to or included in the prospectus that the applicant can remove to send for a Statement of Additional Information; and (c) Registrant hereby undertakes to deliver any Statement of Additional Information and any financial statements required to be made available under this Form promptly upon written or oral request. REPRESENTATIONS 1. The account meets the definition of a “separate account” under federal securities laws. 2. ING USA Annuity and Life Insurance Company hereby represents that the fees and charges deducted under the Contract described in the Prospectus, in the aggregate, are reasonable in relation to the services rendered, the expenses to be incurred and the risks assumed by the Company. SIGNATURES As required by the Securities Act of 1933 and the Investment Company Act of 1940, the Registrant certifies that it meets the requirement of Securities Act Rule 485(b) for effectiveness of this Post-Effective Amendment to its Registration Statement on Form N-4 and has caused this Post-Effective Amendment to be signed on its behalf in the City of West Chester, Commonwealth of Pennsylvania, on the 18 th day of August, 2009. SEPARATE ACCOUNT B (Registrant) By: ING USA ANNUITY AND LIFE INSURANCE COMPANY (Depositor) By: Thomas J. McInerney* President, Director and Chairman (principal executive officer) By: /s/ John S. Kreighbaum John S. (Scott) Kreighbaum as Attorney-in-Fact As required by the Securities Act of 1933, this Post-Effective Amendment to the Registration has been signed by the following persons in the capacities indicated on August 18, 2009. Signatures Titles President, Director and Chairman Thomas J. McInerney* (principal executive officer) Senior Vice President and Chief Accounting Officer Steven T. Pierson* Director, Executive Vice President and Chief Financial Officer David A. Wheat* Director Bridget M. Healy* Director Donald W. Britton* Director and Senior Vice President Catherine H. Smith* By: /s/ John S. Kreighbaum John S. (Scott) Kreighbaum as Attorney-in-Fact *Executed by John S. (Scott) Kreighbaum on behalf of those indicated pursuant to Powers of Attorney. EXHIBIT INDEX ITEM EXHIBIT TYPE # 24(b)(9) Opinion and Consent of Counsel EX-99.B9 24(b)(10) Consent of Independent Registered Public Accounting Firm EX-99.B10

Exhibit 10.1   SECOND AMENDMENT   to   the Collaboration, License and Supply Agreement, dated July 6, 2004   by and between   Acusphere Inc. (“Acusphere”)   and   Nycomed Danmark ApS (“Nycomed”)   This Second Amendment (the “Second Amendment”), effective as of 9th February, 2006, is entered into by and between Acusphere and Nycomed (the “Parties”).   WHEREAS, the Parties are parties to a Collaboration, License and Supply Agreement, dated July 6, 2004, as amended by the First Amendment to such agreement dated as of October 15, 2005 (as so amended, the “Agreement”); and   WHEREAS, in order to accelerate qualification of Acusphere’s manufacturing facility under applicable governmental regulations, the Parties have agreed that Nycomed will prepay to Acusphere certain amounts otherwise payable upon the attainment of certain milestones set forth in the Agreement, on the terms and     1.               Beginning on  February 9th, 2006,  Nycomed will pay Acusphere an amount not to exceed $370,000 per month for purposes of supporting Acusphere’s qualification of its commercial manufacturing facility in Tewksbury, Massachusetts under applicable governmental regulations.  These payments will be credited against the current balance of the existing two million dollar milestone due upon receipt of the first acceptance for filing of an MAA for the Product in any Primary Jurisdiction as referenced in Section 4.03(a) of the Agreement dated July 6, 2004 (the “MAA Filing Related Milestone”). It is acknowledged that this MAA Filing Related Milestone has been previously reduced by $150,000 by an amendment between the parties dated October 15, 2005.   2.               The Parties agree that the aggregate of these monthly payments will not exceed $1.85 MM and that upon receipt of cumulative payments hereunder of $1.85 MM; the MAA Filing Related Milestone will be considered paid in full and no additional consideration will be forthcoming from Nycomed to Acusphere for achievement of this milestone. To the extent that the cumulative payments hereunder are less than $1.85 MM, the MAA Filing Related Milestone shall be reduced by the amount paid hereunder.   3.               The amount paid on a monthly basis by Nycomed to Acusphere shall not exceed costs incurred by Acusphere for qualification of its commercial manufacturing facility.  Acusphere agrees to use all payments hereunder solely for the purpose of qualification activities at the Acusphere manufacturing facility at Tewksbury, Mass. and shall supply copies of third-party invoices from such qualification activities in support of each Acusphere invoice presented to Nycomed in support of these activities.     4.               Acusphere agrees that Nycomed shall deduct from the six million dollar milestone due to Acusphere upon First Commercial Sale of the Product in any Jurisdiction, as described in Section 4.03(b) of the Agreement dated July 6, 2004, an amount equal to an amount calculated as interest on the monthly payments made under paragraph 1 above, using the then effective per annum Prime Interest Rate, as published in the Wall Street Journal on the date of each such payment, applied to the timeframe beginning with the date upon which payments hereunder are made by Nycomed to Acusphere and ending on the date of achievement of the MAA Filing Related Milestone.   5.               Also in consideration of Nycomed’s agreement to pay an amount not to exceed $370,000 on a monthly basis as set forth herein, Acusphere agrees to provide Nycomed with monthly progress reports, specifically covering the following matters:   •                  Commissioning and validation of the Tewksbury facility update •                  Clinical phase III studies (AI-700-32 and AI-700-33)   The reports will be in the form of telephone conferences, unless Nycomed otherwise requests short written reports.   In the event critical issues or major concerns are raised by Nycomed,  Acusphere agrees to hold physical meetings if requested by Nycomed.  In any event Acusphere agrees to reasonably consider and to use commercially reasonable efforts to incorporate Nycomed’s recommendations into solving or otherwise handling such critical issues.   6.               Except as otherwise set forth herein, all of the terms and conditions of the Agreement shall remain in full force and effect between the Parties.   IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment to be executed in duplicate by their duly authorized officers as of the date first above stated.     ACUSPHERE, INC., NYCOMED DANMARK ApS a Delaware corporation a Danish corporation     By:   /s/ Sherri C. Oberg     Name: Sherri C. Oberg By: /s/ Hakan Bjorkland   Title: Name: Håkan Björkland   Title: Chief Executive Officer           By: /s/ Bent Kjaersgaard     Name: Bent Kjærsgaard   Title: Senior Vice President  

Exhibit 10.1   SCIENTIFIC GAMES CORPORATION   2003 Incentive Compensation Plan As Amended and Restated   1.                                       Purpose. The purpose of this 2003 Incentive Compensation Plan, as amended and restated (the “Plan”), is to assist Scientific Games Corporation, a Delaware corporation (the “Company”), and its subsidiaries in attracting, retaining, motivating and rewarding executives, directors, employees, and other persons who provide services to the Company and/or its subsidiaries, to provide for equitable and competitive compensation opportunities, to encourage long-term service, to recognize individual contributions and reward achievement of Company goals, and promote the creation of long-term value for stockholders by closely aligning the interests of participants with those of stockholders. The Plan authorizes stock-based and cash-based performance incentives for participants, to encourage such persons to expend their maximum efforts in the creation of stockholder value. The Plan is also intended to qualify certain compensation awarded under the Plan for tax deductibility under Section 162(m) of the Internal Revenue Code to the extent deemed appropriate by the Committee which administers the Plan.   2.                                       Definitions. For purposes of the Plan, the following terms shall be defined as set forth below, in addition to such terms defined in Section 1 hereof:   (a)                                  “Annual Incentive Award” means a type of Performance Award granted to a Participant under Section 7(c) representing a conditional right to receive cash, Stock or other Awards or payments, as determined by the Committee, based on performance in a performance period of one fiscal year or a portion thereof.   (b)                                 “Annual Limit” means a Participant’s annual limit on each type of Award authorized under the Plan, as specified in Section 5(b).   (c)                                  “Award” means any award of an Option, SAR (including Limited SAR), Restricted Stock, Deferred Stock, Stock granted as a bonus or in lieu of another award, Dividend Equivalent, Other Stock-Based Award, or Performance Award (including an Annual Incentive Award) together with any other right or interest granted to a Participant under the Plan.   (d)                                 “Beneficiary” means the person, persons, trust, or trusts which have been designated by a Participant in his or her most recent written beneficiary designation filed with the Committee to receive the benefits specified under the Plan upon such Participant’s death to the extent permitted under Section 10(b) hereof. If, upon a Participant’s death, there is no designated Beneficiary or surviving designated Beneficiary, then the term Beneficiary means person, persons, trust, or trusts entitled by will or the laws of descent and distribution to receive such benefits.   (e)                                  “Beneficial Owner” shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act and any successor to such Rule.   (f)                                    “Board” means the Company’s Board of Directors.   (g)                                 “Change in Control” means Change in Control as defined with related terms in Section 9 of the Plan.   (h)                                 “Change in Control Price” means the amount calculated in accordance with Section 9(c) of the Plan.   (i)                                     “Code” means the Internal Revenue Code of 1986, as amended from time to time, including regulations thereunder and successor provisions and regulations, proposed regulations and other applicable guidance or pronouncement of the Department of the Treasury and Internal Revenue Service.   1   (j)                                     “Committee” means the Compensation Committee of the Board of Directors, the composition and governance of which is established in the Committee’s Charter as approved from time to time by the Board and other corporate governance documents of the Company. No action of the Committee shall be void or deemed to be without authority due to the failure of any member, at the time the action was taken, to meet any qualification standard set forth in the Committee Charter or this Plan.   (k)                                  “Covered Employee” means a person designated by the Committee as likely to be a “covered employee,” as defined under Code Section 162(m), with respect to a specified fiscal year or other performance period.   (l)                                     “Deferred Stock” means a conditional right, granted to a Participant under Section 6(e) hereof, to receive Stock, at the end of a specified deferral period.   (m)                               “Dividend Equivalent” means a conditional right, granted to a Participant under Section 6(g), to receive cash, Stock, other Awards, or other property equal in value to dividends paid with respect to a specified number of shares of Stock.   (n)                                 “Effective Date” means June 23, 2003.   (o)                                 “Eligible Person” means each executive officer and other officer or full-time employee of the Company or of any subsidiary, including each such person who may also be a director of the Company, each non-employee director of the Company, each other person who provides substantial services to the Company and/or its subsidiaries and who is designated as eligible by the Committee, and any person who has been offered employment by the Company or a subsidiary or affiliate, provided that such prospective employee may not receive any payment or exercise any right relating to an Award until such person has commenced employment with the Company or a subsidiary. An employee on leave of absence may be considered as still in the employ of the Company or a subsidiary for purposes of eligibility for participation in the Plan.   (p)                                 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, including rules thereunder and successor provisions and rules thereto.   (q)                                 “Fair Market Value” means the fair market value of Stock, Awards, or other property as determined in good faith by the Committee or under procedures established by the Committee. Unless otherwise determined by the Committee, the Fair Market Value of Stock shall be the average of the high and low sales prices of Stock on a given date or, if there are no sales on that date, on the latest previous date on which there were sales, reported for composite transactions in securities listed on the principal trading market on which Stock is then listed. Fair Market Value relating to the exercise price or grant price of any Non-409A Option or SAR shall conform to requirements under Code Section 409A.   (r)                                    “409A Awards” means Awards that constitute a deferral of compensation under Code Section 409A and regulations thereunder. “Non-409A Awards” means Awards other than 409A Awards; an Award granted before January 1, 2005 which is eligible for “grandfathering” under Code Section 409A (generally such an Award must be vested before January 1, 2005 in order to be grandfathered) constitutes a Non-409A Award unless the Committee instead designates it as a 409A Award. Although the Committee retains authority under the Plan to grant Options, SARs and Restricted Stock on terms that will qualify those Awards as 409A Awards, Options, SARs, and Restricted Stock will be Non-409A Awards (with conforming terms, as provided in Section 10(h)) unless otherwise expressly specified by the Committee.   (s)                                  “Incentive Stock Option” or “ISO” means any Option intended to be and designated as an incentive stock option within the meaning of Code Section 422 or any successor provision thereto that may be granted to Eligible Persons who are employees.   (t)                                    “Initial Shares” has the meaning ascribed to such term in Section 4(a) of the Plan.   (u)                                 “Limited SAR” means a conditional right granted to a Participant under Section 6(c) hereof.   2   (v)                                 “Mafco” means each of MacAndrews & Forbes Holdings Inc., Ronald O. Perelman (or any of his Permitted Transferees) or any of their respective affiliates.   (w)                               “Option” means a conditional right, granted to a Participant under Section 6(b) hereof, to purchase Stock or other Awards at a specified price during specified time periods.   (x)                                   “Other Stock-Based Awards” means Awards granted to a Participant under Section 6(h) hereof.   (y)                                 “Participant” means a person who has been granted an Award under the Plan which remains outstanding, including a person who is no longer an Eligible Person.   (z)                                   “Performance Award” means a conditional right, granted to a Participant under Section 7, to receive cash, Stock or other Awards or payments, as determined by the Committee, based upon performance criteria specified by the Committee.   (aa)                            “Permitted Transferees” means, with respect to any person that is a natural person (and any Permitted Transferee of such person), (a) such person’s immediate family, including his or her spouse, ex-spouse, children, step-children and their respective lineal descendants and (b) any trust or other legal entity the beneficiary of which is such person’s immediate family, including his or her spouse, ex-spouse, children, stepchildren or their respective lineal descendants and which is controlled by such person.   (bb)                          “Preexisting Plan” mean the Company’s 1997 Incentive Compensation Plan, as amended and restated.   (cc)                            “Restricted Stock” means Stock granted to a Participant under Section 6(d) hereof, that is subject to certain restrictions and to a risk of forfeiture.   (dd)                          “Rule 16b-3” means Rule 16b-3, as from time to time in effect and applicable to the Plan and Participants, promulgated by the Securities and Exchange Commission under Section 16 of the Exchange Act.   (ee)                            “Stock” means the Company’s Class A Common Stock, $.01 par value, and such other securities as may be substituted (or resubstituted) for Stock pursuant to Section 10(c) hereof.   (ff)                                “Stock Appreciation Rights” or “SAR” means a conditional right granted to a Participant under Section 6(c) hereof.   3.                                       Administration.   (a)                                  Authority of the Committee. Except as otherwise provided below, the Plan shall be administered by the Committee. The Committee shall have full and final authority, in each case subject to and consistent with the provisions of the Plan, to select Eligible Persons to become Participants, grant Awards, determine the type, number, and other terms and conditions of, and all other matters relating to, Awards, prescribe Award agreements (which need not be identical for each Participant) and rules and regulations for the administration of the Plan, construe and interpret the Plan and Award agreements and correct defects, supply omissions, or reconcile inconsistencies therein, and to make all other decisions and determinations as the Committee may deem necessary or advisable for the administration of the Plan. The foregoing notwithstanding, the Board shall perform the functions of the Committee for purposes of granting Awards under the Plan to non-employee directors, and may perform any function of the Committee under the Plan for any other purpose (subject to Nasdaq Listing Rule 5635(c)), including for the purpose of ensuring that transactions under the Plan by Participants who are then subject to Section 16 of the Exchange Act in respect of the Company are exempt under Rule 16b-3. In any case in which the Board is performing a function of the Committee under the Plan, each reference to the Committee herein shall be deemed to refer to the Board, except where the context otherwise requires. Any action of the Committee shall be final, conclusive and binding on all persons, including the Company, its subsidiaries, Participants, Beneficiaries, transferees under Section 10(b) hereof, or other persons claiming rights from or through a Participant, and stockholders.   3   (b)                                 Manner of Exercise of Committee Authority. The Committee may act through subcommittees, including for purposes of perfecting exemptions under Rule 16b-3 or qualifying Awards under Code Section 162(m) as performance-based compensation, in which case the subcommittee shall be subject to and have authority under the charter applicable to the Committee, and the acts of the subcommittee shall be deemed to be acts of the Committee hereunder. The Committee may otherwise act with members of the Committee abstaining or recusing themselves to ensure compliance with regulatory requirements or to promote effective governance, as determined by the Committee. The express grant of any specific power to the Committee, and the taking of any action by the Committee, shall not be construed as limiting any power or authority of the Committee. The Committee may delegate to officers or managers of the Company or any subsidiary or affiliate, or committees thereof, the authority, subject to such terms as the Committee shall determine, to perform such functions, including administrative functions, as the Committee may determine, to the fullest extent permitted under Section 157 and other applicable provisions of the Delaware General Corporation Law. The Committee may appoint agents to assist it in administering the Plan.   (c)                                  Limitation of Liability. The Committee and each member thereof, and any person acting pursuant to authority delegated by the Committee, shall be entitled, in good faith, to rely or act upon any report or other information furnished by any executive officer, other officer or employee of the Company or a subsidiary or affiliate, the Company’s independent auditors, consultants or any other agents assisting in the administration of the Plan. Members of the Committee, any person acting pursuant to authority delegated by the Committee, and any officer or employee of the Company or a subsidiary or affiliate acting at the direction or on behalf of the Committee or a delegee shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the extent permitted by law, be fully indemnified and protected by the Company with respect to any such action or determination.   4.                                       Shares Available Under the Plan.   (a)                                  Number of Shares Available for Delivery. Subject to adjustment as provided in Section 10(c) hereof, the total number of shares of Stock reserved and available for delivery in connection with Awards under the Plan shall be 13,500,000 plus the number of shares that, under the Preexisting Plan, were available at the Effective Date or thereafter have or will become available. Any shares of Stock delivered under the Plan shall consist of authorized and unissued shares or treasury shares.   (b)                                 Share Counting Rules. Subject to the provisions of this Section 4(b), the Committee may adopt reasonable counting procedures to ensure appropriate counting, avoid double counting (as, for example, in the case of tandem or substitute awards) and make adjustments if the number of shares of Stock actually delivered differs from the number of shares previously counted in connection with an Award. Any shares which are (i) underlying an Option or SAR which is cancelled or terminated without having been exercised, including due to expiration or forfeiture, (ii) subject to an Award (other than an Option or SAR) which is cancelled, terminated or forfeited, (iii) not delivered to a Participant because all or a portion of the Award is settled in cash, (iv) withheld upon exercise of an Option to satisfy the exercise price (including the Option shares equal to the number of shares separately surrendered to pay the exercise price), (v) subject to an SAR but in excess of the number of shares actually delivered to the Participant upon exercise of the SAR, or (vi) withheld in connection with an Award to satisfy tax withholding obligations, shall in each case again be available for Awards under the Plan. Shares repurchased on the open market with the proceeds from the exercise of an Option may not again be made available for Awards under the Plan. For purposes of determining the number of Shares that become available under the Preexisting Plan, the share counting rules of this Plan shall apply. The payment of cash dividends and Dividend Equivalents in conjunction with outstanding Awards shall not be counted against the shares available for Awards under the Plan. In addition, in the case of any Award granted in substitution for an award of a company or business acquired by the Company or a subsidiary or affiliate, shares issued or issuable in connection with such substitute Award shall not be counted against the number of shares reserved under the Plan, but shall be available under the Plan by virtue of the Company’s assumption of   4   the plan or arrangement of the acquired company or business. This Section 4(b) shall apply to the number of shares reserved and available for ISOs only to the extent consistent with applicable regulations relating to ISOs under the Code. This Section 4(b) will apply to Awards and awards outstanding, and transactions and events relating to Awards and awards, on and after June 7, 2011; with regard to transactions and events relating to Awards and awards before June 7, 2011, the share counting rules in the 2003 Plan as then in effect applied. Because shares will count against the number reserved in Section 4(a) upon delivery (or later vesting) and subject to the share counting rules under this Section 4(b), the Committee may determine that Awards may be outstanding that relate to more shares than the aggregate remaining available under the Plan, so long as Awards will not result in delivery and vesting of shares in excess of the number then available under the Plan.   5.                                       Eligibility; Per-Person Award Limitations.   (a)                                  Grants to Eligible Persons. Awards may be granted under the Plan only to Eligible Persons.   (b)                                 Annual Per-Person Award Limitations. In each calendar year during any part of which the Plan is in effect, an Eligible Person may be granted Awards under each of Sections 6(b), 6(c), 6(d), 6(e), 6(f), 6(g), and 6(h) (including Performance Awards under Section 7 based on Awards authorized by each referenced subsection) relating to a number of shares of Stock up to his or her Annual Limit. A Participant’s Annual Limit, in any year during any part of which the Participant is then eligible under the Plan, shall equal 1,500,000 shares plus the amount of the Participant’s unused Annual Limit relating to the same type of Award as of the close of the previous year, subject to adjustment as provided in Section 10(c). In the case of a cash-denominated Award for which the limitation set forth in the preceding sentence would not operate as an effective limitation satisfying Treasury Regulation § 1.162-27(e)(4) (including a cash Performance Award under Section 7), an Eligible Person may not be granted Awards authorizing the earning during any calendar year of an amount that exceeds the Participant’s Annual Limit, which for this purpose shall equal $3,000,000 plus the amount of the Participant’s unused cash Annual Limit as of the close of the previous year (this limitation is separate and not affected by the number of Awards granted during such calendar year subject to the limitation in the preceding sentence). For this purpose, (i) “earning” means satisfying performance conditions so that an amount becomes payable, without regard to whether it is to be paid currently or on a deferred basis or continues to be subject to any service requirement or other non-performance condition, and (ii) a Participant’s Annual Limit is used to the extent a cash amount or number of shares may be potentially earned or paid under an Award, regardless of whether such amount or shares are in fact earned or paid.   6.                                       Specific Terms of Awards.   (a)                                  General. Awards may be granted on the terms and conditions set forth in this Section 6. In addition, the Committee may impose on any Award or the exercise thereof, at the date of grant or thereafter (subject to Sections 10(e) and 10(h)), such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine, including terms requiring forfeiture of Awards in the event of termination of employment by the Participant and terms permitting a Participant to make elections relating to his or her Award. The Committee shall retain full power and discretion to accelerate, waive or modify, at any time, any term or condition of an Award that is not mandatory under the Plan, subject to Section 10(h) and the rules thereunder. The Committee shall require the payment of lawful consideration for an Award to the extent necessary to satisfy the requirements of the Delaware General Corporation Law, and may otherwise require payment of consideration for an Award except as limited by the Plan.   (b)                                 Options. The Committee is authorized to grant Options to Participants on the following terms and conditions:   (i)                                     Exercise Price. The exercise price per share of Stock purchasable under an Option shall be determined by the Committee, provided that such exercise price shall be not less than the Fair Market   5   Value of a share of Stock on the date of grant of such Option except as provided under Section 8(a) hereof. In addition, in connection with a merger, consolidation or reorganization of the Company or any of its subsidiaries, the Committee may grant Options with an exercise price per share less than the market value of the Common Stock on the date of grant if such Options are granted in exchange for, or upon conversion of, options to purchase capital stock of any other entity which is a party to such merger, consolidation or reorganization, and such Option so granted does not enlarge the aggregate in-the-money value of the original award at the acquisition date.   (ii)                                  Time and Method of Exercise. The Committee shall determine the term of the Option, subject to Section 8(b), and the time or times at which or the circumstances under which an Option may be exercised in whole or in part (including based on achievement of performance goals and/or future service requirements), the methods by which such exercise price may be paid or deemed to be paid, the form of such payment (subject to Section 10(h) and (i)), including, without limitation, cash, Stock (including Stock deliverable upon exercise, if such withholding will not result in additional accounting expense to the Company), other Awards or awards granted under other plans of the Company or any subsidiary or affiliate, or other property (including through broker- assisted “cashless exercise” arrangements, to the extent permitted by applicable law), and the methods by or forms in which Stock will be delivered or deemed to be delivered in satisfaction of Options to Participants (including, to the extent permitted under Code Section 409A, deferred delivery of shares as mandated by the Committee, with such deferred shares subject to any vesting, forfeiture or other terms as the Committee may specify).   (iii)                               ISOs. The terms of any ISO granted under the Plan shall comply in all respects with the provisions of Code Section 422. Anything in the Plan to the contrary notwithstanding, no term of the Plan relating to ISOs (including any SAR in tandem therewith) shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be exercised, so as to disqualify either the Plan or any ISO under Code Section 422, unless the Participant has first consented to the change that will result in such disqualification. ISOs may be granted only to employees of the Company or any of its subsidiaries. To the extent that the aggregate Fair Market Value (determined as of the time the Option is granted) of the Stock with respect to which ISOs granted under this Plan and all other plans of the Company and any subsidiary are first exercisable by any employee during any calendar year shall exceed the maximum limit (currently, $100,000), if any, imposed from time to time under Code Section 422, such Options shall be treated as Options that are not ISOs.   (c)                                  Stock Appreciation Rights. The Committee is authorized to grant SARs to Participants on the following terms and conditions:   (i)                                     Right to Payment. A SAR shall confer on the Participant to whom it is granted a right to receive, upon exercise thereof, the excess of (A) the Fair Market Value of one share of Stock on the date of exercise (or, in the case of a “Limited SAR,” the Fair Market Value determined by reference to the Change in Control Price, as defined under Section 9(c) hereof) over (B) the grant price of the SAR as determined by the Committee, which grant price shall be not less than the Fair Market Value of a share of Stock on the date of grant of such SAR.   (ii)                                  Other Terms. The Committee shall determine, at the date of grant or thereafter, the term of each SAR, subject to Section 8(b), the time or times at which and the circumstances under which an SAR may be exercised in whole or in part (including based on achievement of performance goals and/or future service requirements), the method of exercise, method of settlement, form of consideration payable in settlement, method by or forms in which Stock will be delivered or deemed to be delivered to Participants, whether or not an SAR shall be in tandem or in combination with any other Award, whether or not the SAR will be a 409A Award or Non-409A Award, and any other terms and conditions of any SAR. Limited SARs that may only be exercised in connection with a Change in Control, termination of service following a Change in Control, or other event as specified by the   6   Committee may be granted on such terms, not inconsistent with this Section 6(c), as the Committee may determine. SARs and Limited SARs may be either freestanding or in tandem with other Awards. The Committee may require that an outstanding Option be exchanged for an SAR exercisable for Stock having vesting, expiration, and other terms substantially the same as the Option, so long as such exchange will not result in additional accounting expense to the Company.   (d)                                 Restricted Stock. The Committee is authorized to grant Restricted Stock to Participants on the following terms and conditions:   (i)                                     Grant and Restrictions. Restricted Stock shall be subject to such restrictions on transferability, risk of forfeiture and other restrictions, if any, as the Committee may impose, which restrictions may lapse separately or in combination at such times, under such circumstances (including based on achievement of performance goals and/or future service requirements), in such installments or otherwise, as the Committee may determine at the date of grant or thereafter. Except to the extent restricted under the terms of the Plan and any Award agreement relating to the Restricted Stock, a Participant granted Restricted Stock shall have all of the rights of a stockholder, including the right to vote the Restricted Stock and the right to receive dividends thereon (subject to any mandatory reinvestment or other requirement imposed by the Committee). During the restricted period applicable to the Restricted Stock, subject to Section 10(b) below, the Restricted Stock may not be sold, transferred, pledged, hypothecated, margined, or otherwise encumbered by the Participant.   (ii)                                  Forfeiture. Except as otherwise determined by the Committee, upon termination of employment during the applicable restriction period, Restricted Stock that is at that time subject to restrictions shall be forfeited and reacquired by the Company; provided that the Committee may provide, by rule or regulation or in any Award agreement, or may determine in any individual case, that restrictions or forfeiture conditions relating to Restricted Stock shall be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part the forfeiture of Restricted Stock.   (iii)                               Certificates for Stock. Restricted Stock granted under the Plan may be evidenced in such manner as the Committee shall determine. If certificates representing Restricted Stock are registered in the name of the Participant, the Committee may require that such certificates bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Restricted Stock, that the Company retain physical possession of the certificates, and/or that the Participant deliver a stock power to the Company, endorsed in blank, relating to the Restricted Stock.   (iv)                              Dividends and Splits. As a condition to the grant of an Award of Restricted Stock, the Committee may require that any cash dividends paid on a share of Restricted Stock be automatically reinvested in additional shares of Restricted Stock or applied to the purchase of additional Awards under the Plan. Unless otherwise determined by the Committee, Stock distributed in connection with a Stock split or Stock dividend, and other property distributed as a dividend, shall be subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock with respect to which such Stock or other property has been distributed.   (e)                                  Deferred Stock. The Committee is authorized to grant Deferred Stock to Participants, which are rights to receive Stock at the end of a specified deferral period, subject to the following terms and conditions:   (i)                                     Award and Restrictions. Settlement of an Award of Deferred Stock shall occur upon expiration of the deferral period specified for such Deferred Stock by the Committee (or, if permitted by the Committee, as elected by the Participant). In addition, Deferred Stock shall be subject to such restrictions (which may include a risk of forfeiture) as the Committee may impose, if any, which restrictions may lapse at the expiration of the deferral period or at earlier specified times (including   7   based on achievement of performance goals and/or future service requirements), separately or in combination, in installments or otherwise, as the Committee may determine.   by the Committee, upon termination of employment during the applicable deferral period or portion thereof to which forfeiture conditions apply (as provided in the Award agreement evidencing the Deferred Stock), all Deferred Stock that is at that time subject to deferral (other than a deferral at the election of the Participant) shall be forfeited; provided that the Committee may provide, by rule or regulation or in any Award agreement, or may determine in any individual case, that restrictions or forfeiture conditions relating to Deferred Stock shall be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part the forfeiture of Deferred Stock. Deferred Stock subject to a risk of forfeiture may be called “restricted stock units” or otherwise designated by the Committee.   (iii)                               Dividend Equivalents. Unless otherwise determined by the Committee at date of grant, Dividend Equivalents on the specified number of shares of Stock covered by an Award of Deferred Stock shall be either (A) paid with respect to such Deferred Stock at the dividend payment date in cash or in shares of unrestricted Stock having a Fair Market Value equal to the amount of such dividends, or (B) deferred with respect to such Deferred Stock and the amount or value thereof automatically deemed reinvested in additional Deferred Stock, other Awards or other investment vehicles, as the Committee shall determine or permit the Participant to elect.   (f)                                    Bonus Stock and Awards in Lieu of Obligations. The Committee is authorized to grant Stock as a bonus, or to grant Stock or other Awards in lieu of obligations of the Company or a subsidiary or affiliate to pay cash or deliver other property under the Plan or under other plans or compensatory arrangements, subject to such terms as shall be determined by the Committee.   (g)                                 Dividend Equivalents. The Committee is authorized to grant Dividend Equivalents to a Participant, entitling the Participant to receive cash, Stock, other Awards, or other property equivalent to all or a portion of the dividends paid with respect to a specified number of shares of Stock. Dividend Equivalents may be awarded on a free-standing basis or in connection with another Award. The Committee may provide that Dividend Equivalents shall be paid or distributed when accrued or shall be deemed to have been reinvested in additional Stock, Awards, or other investment vehicles, and subject to restrictions on transferability, risks of forfeiture and such other terms as the Committee may specify. The foregoing notwithstanding, (i) dividends and dividend equivalents will not be credited or payable with respect to an Option or SAR, except that this provision will not limit adjustments authorized under Section 10(c); and (ii) Dividend Equivalents relating to a Performance Awards at minimum shall be forfeitable to the extent the related Performance Award remains forfeitable upon failure to achieve the specified performance conditions.   (h)                                 Other Stock-Based Awards. The Committee is authorized, subject to limitations under applicable law, to grant to Participants such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Stock, as deemed by the Committee to be consistent with the purposes of the Plan, including, without limitation, convertible or exchangeable debt securities, other rights convertible or exchangeable into Stock, purchase rights for Stock, Awards with value and payment contingent upon performance of the Company or any other factors designated by the Committee, and Awards valued by reference to the book value of Stock or the value of securities of or the performance of specified subsidiaries. The Committee shall determine the terms and conditions of such Awards. Stock delivered pursuant to an Award in the nature of a purchase right granted under this Section 6(h) shall be purchased for such consideration, paid for at such times, by such methods, and in such forms, including, without limitation, cash, Stock, other Awards, or other property, as the Committee shall determine.   8   7.                                      Performance Awards, Including Annual Incentive Awards   (a)                                 Performance Awards Generally. The Committee is authorized to grant Performance Awards on the terms and conditions specified in this Section 7. Performance Awards may be denominated as a cash amount, number of shares of Stock, or specified number of other Awards (or a combination) which may be earned upon achievement or satisfaction of performance conditions specified by the Committee. In addition, the Committee may specify that any other Award shall constitute a Performance Award by conditioning the right of a Participant to exercise the Award or have it settled, or the timing thereof, upon achievement or satisfaction of such performance conditions as may be specified by the Committee. The Committee may use such business criteria and other measures of performance as it may deem appropriate in establishing any performance conditions, and may exercise its discretion to reduce or increase the amounts payable under any Award subject to performance conditions, except (i) as limited under Sections 7(b) and 7(c) in the case of a Performance Award intended to qualify as “performance-based compensation” under Code Section 162(m); and (ii), in the case of any Performance Award denominated in shares at the grant date (i.e., an Award classified as equity under Financial Accounting Standards Board (FASB) Accounting Standards Codification 718 (“FASB ASC Topic 718”)), no discretion to reduce or increase the amounts payable (except as provided under Section 10(c)) shall be reserved unless such reservation of discretion is expressly stated by the Committee at the time it acts to authorize or approve the grant of such Performance Award.   (b)                                 Performance Awards Granted to Covered Employees. If the Committee determines that a Performance Award to be granted to an Eligible Person who is designated by the Committee as a Covered Employee should qualify as “performance-based compensation” for purposes of Code Section 162(m), the grant, exercise and/or settlement of such Performance Award shall be contingent upon achievement of a preestablished performance goal and other terms set forth in this Section 7(b).   (i)                                     Performance Goals Generally. The performance goal for such Performance Awards shall consist of one or more business criteria and a targeted level or levels of performance with respect to each of such criteria, as specified by the Committee consistent with this Section 7(b). The performance goal shall be objective and shall otherwise meet the requirements of Code Section 162(m) and regulations thereunder (including Treasury Regulation § 1.162-27 and successor regulations thereto), including the requirement that the level or levels of performance targeted by the Committee result in the achievement of performance goals being “substantially uncertain.” The Committee may determine that such Performance Awards shall be granted, exercised and/or settled upon achievement of any one performance goal or that two or more of the performance goals must be achieved as a condition to grant, exercise and/or settlement of such Performance Awards. Performance goals may differ for Performance Awards granted to any one Participant or to different Participants.   (ii)                                  Business Criteria. One or more of the following business criteria for the Company, on a consolidated basis, and/or for specified subsidiaries or affiliates or other business units or lines of business or specific products of the Company (on an audited or unaudited basis) shall be used by the Committee in establishing performance goals for such Performance Awards: (1) earnings per share (basic or fully diluted); (2) revenues; (3) earnings, before or after taxes, from operations (generally or specified operations), before or after interest expense, depreciation, amortization, incentives, or extraordinary or special items; (4) cash flow, free cash flow, cash flow return on investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of cost of capital; (5) return on net assets, return on assets, return on investment, return on capital, return on equity; (6) economic value created; (7) operating margin or operating expense; (8) net income; (9) Stock price or total stockholder return; and (10) strategic business criteria, consisting of one or more objectives based on meeting specified market penetration, geographic business expansion goals, new products, ventures or facilities, cost targets, internal controls, compliance, customer satisfaction and services, human resources management, supervision of litigation and information technology, and   9   goals relating to acquisitions or divestitures of subsidiaries, affiliates, joint ventures or facilities. The targeted level or levels of performance with respect to such business criteria may be established at such levels and in such terms as the Committee may determine, in its discretion, including in absolute terms, as a goal relative to performance in prior periods, or as a goal compared to the performance of one or more comparable companies or an index covering multiple companies.   (iii)                               Performance Period; Timing for Establishing Performance Goals; Per-Person Limit. Achievement of performance goals in respect of such Performance Awards shall be measured over a performance period of up to one year or more than one year, as specified by the Committee. A performance goal shall be established not later than the earlier of (A) 90 days after the beginning of any performance period applicable to such Performance Award or (B) the time 25% of such performance period has elapsed. In all cases, the maximum Performance Award of any Participant shall be subject to the limitation set forth in Section 5(b).   (iv)                              Performance Award Pool. The Committee may establish a Performance Award pool, which shall be an unfunded pool, for purposes of measuring performance of the Company or a business unit in connection with Performance Awards. The amount of such Performance Award pool shall be based upon the achievement of a performance goal or goals based on one or more of the business criteria set forth in Section 7(b)(ii) during the given performance period, as specified by the Committee in accordance with Section 7(b)(i). The Committee may specify the amount of the Performance Award pool as a percentage of any of such business criteria, a percentage thereof in excess of a threshold amount, or as another amount which need not bear a strictly mathematical relationship to such business criteria.   (v)                                 Settlement of Performance Awards; Other Terms. Settlement of such Performance Awards shall be in cash, Stock, other Awards or other property, in the discretion of the Committee. The Committee may, in its discretion, and subject to Section 7(a) hereof, increase or reduce the amount of a settlement otherwise to be made in connection with such Performance Awards, but may not exercise discretion to increase any such amount payable to a Covered Employee in respect of a Performance Award subject to this Section 7(b) to the extent that such discretion would increase the amount payable above that amount designated as potentially payable upon achievement of the performance goal intended to qualify the Award as “performance-based compensation” under Code Section 162(m). Any settlement which changes the form of payment from that originally specified shall be implemented in a manner such that the Performance Award and other related Awards do not, solely for that reason, fail to qualify as “performance-based compensation” for purposes of Code Section 162(m). The Committee shall specify the circumstances in which such Performance Awards shall be paid or forfeited in the event of termination of employment by the Participant or other event (including a Change in Control) prior to the end of a performance period or settlement of such Performance Awards; any resulting payments need not qualify as performance-based compensation under Section 162(m) if the authorization of such non-qualifying payments would not otherwise disqualify the Performance Award apart from the termination or change in control.   (c)                                  Annual Incentive Awards Granted to Designated Covered Employees. The Committee may grant a Performance Award in the form of an Annual Incentive Award to an Eligible Person who is designated by the Committee as likely to be a Covered Employee. Such Annual Incentive Award will be intended to qualify as “performance-based compensation” for purposes of Code Section 162(m), and therefore its grant, exercise and/or settlement shall be contingent upon achievement of preestablished performance goals and shall comply with the other requirements set forth in Section 7(b).   (d)                                 Written Determinations. Determinations by the Committee as to the establishment of performance goals, the amount potentially payable in respect of Performance Awards, the level of actual achievement of the specified performance goals relating to Performance Awards and the amount of any final Performance Award shall be recorded in writing in the case of Performance Awards intended to   10   qualify under Section 162(m). Specifically, the Committee shall certify in writing, in a manner conforming to applicable regulations under Section 162(m), prior to settlement of each such Award granted to a Covered Employee, that the performance objective relating to the Performance Award and other material terms of the Award upon which settlement of the Award was conditioned have been satisfied.   8.                                      Certain Provisions Applicable to Awards.   (a)                                 Stand-Alone, Additional, Tandem, and Substitute Awards. Subject to the restrictions on “repricing” set forth in Section 10(e), Awards granted under the Plan may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution or exchange for, any other Award or any award granted under another plan of the Company, any subsidiary or affiliate, or any business entity to be acquired by the Company or a subsidiary or affiliate, or any other right of a Participant to receive payment from the Company or any subsidiary or affiliate; provided, however, that a 409A Award may not be granted in tandem with a Non-409A Award. Awards granted in addition to or in tandem with other Awards or awards may be granted either as of the same time as or a different time from the grant of such other Awards or awards.   (b)                                 Term of Awards. The term of each Award shall be for such period as may be determined by the Committee; provided that in no event shall the term of any Option or SAR exceed a period of ten years (or, in the case of an ISO, such shorter term as may be required under Code Section 422).   (c)                                  Form and Timing of Payment under Awards; Deferrals. Subject to the terms of the Plan (including Sections 10(h) and (i)) and any applicable Award agreement, payments to be made by the Company or a subsidiary upon the exercise of an Option or other Award or settlement of an Award may be made in cash, Stock, other Awards, or other property, and may be made in a single payment or transfer, in installments, or on a deferred basis. The settlement of any Award may be accelerated in the discretion of the Committee or upon occurrence of one or more specified events (in addition to a Change in Control, subject to Sections 10(h) and (i)). Installment or deferred payments may be required by the Committee (subject to Sections 10(e) and 10(h) of the Plan, including the consent provisions thereof in the case of any deferral of an outstanding Award not provided for in the original Award agreement) or permitted at the election of the Participant on terms and conditions established by the Committee. Payments may include, without limitation, provisions for the payment or crediting of reasonable interest on installment or deferred payments or the grant or crediting of Dividend Equivalents or other amounts in respect of installment or deferred payments denominated in Stock. Any payment deferred pursuant to this Section 8(c) shall represent only an unfunded, unsecured promise by the Company to pay the amount credited thereto to the Participant in the future. In the case of any 409A Award that is vested and no longer subject to a risk of forfeiture (within the meaning of Code Section 83) and deferred at the election of the Participant, such Award will be distributed to the Participant, upon application of the Participant, if the Participant has had an unforeseeable emergency within the meaning of Code Sections 409A(a)(2)(A)(vi) and 409A(a)(2)(B)(ii), in accordance with Section 409A(a)(2)(B)(ii).   (d)                                 Additional Award Forfeiture Provisions. The Committee may condition a Participant’s right to receive a grant of an Award, to exercise the Award, to retain Stock acquired in connection with an Award, or to retain the profit or gain realized by a Participant in connection with an Award, including cash received upon sale of Stock acquired in connection with an Award, upon compliance by the Participant with specified conditions relating to non-competition, confidentiality of information relating to the Company, non-solicitation of customers, suppliers, and employees of the Company, cooperation in litigation, non-disparagement of the Company and its officers, directors and affiliates, and other restrictions upon or covenants of the Participant, including during specified periods following termination of employment or service to the Company.   (e)                                  Exemptions from Section 16(b) Liability. With respect to a Participant who is then subject to the reporting requirements of Section 16(a) of the Exchange Act in respect of the Company, the Committee shall implement transactions under the Plan and administer the Plan in a manner that will ensure that each   11   transaction with respect to such a Participant is exempt from liability under Rule 16b-3 or otherwise not subject to liability under Section 16(b), except that this provision shall not limit sales by such a Participant, and such a Participant may elect to engage in other non-exempt transactions under the Plan. The Committee may authorize the Company to repurchase any Award or shares of Stock deliverable or delivered in connection with any Award (subject to Section 10(i)) in order to avoid a Participant who is subject to Section 16 of the Exchange Act incurring liability under Section 16(b). Unless otherwise specified by the Participant, equity securities or derivative securities acquired under the Plan which are disposed of by a Participant shall be deemed to be disposed of in the order acquired by the Participant.   (f)                                   Prohibition on Loans. No term of an Award shall provide for a personal loan to a Participant.   9.                                      Change in Control.   (a)                                 Effect of “Change in Control.” In the event of a “Change in Control,” the following provisions shall apply unless otherwise provided in the Award agreement:   (i)                                     Any Award carrying a right to exercise that was not previously exercisable and vested shall become fully exercisable and vested as of the time of the Change in Control;   (ii)                                  If any optionee holds an Option immediately prior to a Change in Control that was not previously exercisable and vested in full throughout the 60-day period preceding the Change in Control, he shall be entitled to elect, during the 60-day period following the Change in Control, in lieu of acquiring the shares of Stock covered by the portion of the Option that was not vested and exercisable within such 60-day period, to receive, and the Company shall be obligated to pay, in cash the excess of the Change in Control Price over the exercise price of such Option, multiplied by the number of shares of Stock covered by such portion of the Option;   (iii)                               The restrictions, deferral of settlement, and forfeiture conditions applicable to any other Award granted under the Plan shall lapse and such Awards shall be deemed fully vested as of the time of the Change in Control, except to the extent of any waiver by the Participant and subject to applicable restrictions set forth in Section 10(a) hereof; and   (iv)                              With respect to any outstanding Award subject to achievement of performance goals and conditions under the Plan, such performance goals and other conditions will be deemed to be met if and to the extent so provided by the Committee in the Award agreement relating to such Award.   The foregoing notwithstanding, any benefit or right provided under this Section 9 in the case of any non-409A Award shall be limited to those benefits and rights permitted under Code Section 409A, and any benefit or right provided under this Section 9 that would result in a distribution of a 409A Award at a time or in a manner not permitted by Section 409A shall be limited to the extent necessary so that the distribution is permitted under Section 409A. For this purpose, the distribution of a 409A Award (i) triggered by a Change in Control will remain authorized if the Change in Control also constitutes a change in the substantial portion of the assets of the Company, within the meaning of Code Section 409A(a)(2)(A)(v), and (ii) triggered by a termination of employment with or service to the Company or a subsidiary following a Change in Control by a specified employee, within the meaning of Code Section 409A(a)(2)(B)(i), will remain authorized to occur six months after such termination.   (b)                                 Definition of “Change in Control.” A “Change in Control” shall mean the occurrence of any of the following:   (i)                                     when any “person” as defined in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act but excluding the Company and any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee of such plan acting as trustee), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange   12   Act) of securities of the Company representing at least 40% (or such greater percentage as the Committee may specify in connection with the grant of any Award) of the combined voting power of the Company’s then-outstanding securities; provided, however, that a Change in Control shall not be deemed to have occurred under this Section 9(b)(i) if Mafco, directly or indirectly, becomes the “beneficial owner” of securities of the Company representing 40% or more of the combined voting power of the Company’s then-outstanding securities; or   (ii)                                  the occurrence of a transaction requiring stockholder approval for the acquisition of the Company by an entity other than the Company or a subsidiary by merger or otherwise or for the purchase by an entity other than the Company or a subsidiary of substantially all of the assets of the Company;   provided, however, that, for an Award granted before June 7, 2011, unless otherwise provided in an applicable Award agreement, the definition of Change in Control that will apply will be that definition in effect at the time of grant of such Award.   (c)                                  Definition of “Change in Control Price.” The “Change in Control Price” means (i), in the case of an Option or SAR (including any Limited SAR) granted in 2005 or thereafter, or granted before 2005 but not “grandfathered” under Code Section 409A, the Fair Market Value of a share on the date of exercise of such Option or SAR; and (ii), in the case of an Option or SAR “grandfathered” under Code Section 409A, an amount in cash equal to the higher of (A) the amount of cash and fair market value of property that is the highest price per share paid (including extraordinary dividends) in any transaction triggering the Change in Control, or (B) the highest Fair Market Value per share at any time during the 60-day period preceding the Change in Control.   10.                               General Provisions.   (a)                                 Compliance with Legal and Other Requirements. The Company may, to the extent deemed necessary or advisable by the Committee and subject to Section 10(h), postpone the issuance or delivery of Stock or payment of other benefits under any Award until completion of such registration or qualification of such Stock or other required action under any federal or state law, rule, or regulation, listing or other required action with respect to any stock exchange or automated quotation system upon which the Stock or other securities of the Company are listed or quoted, or compliance with any other obligation of the Company, as the Committee may consider appropriate, and may require any Participant to make such representations, furnish such information and comply with or be subject to such other conditions as it may consider appropriate in connection with the issuance or delivery of Stock or payment of other benefits in compliance with applicable laws, rules, and regulations, listing requirements, or other obligations. The foregoing notwithstanding, in connection with a Change in Control, the Company shall take or cause to be taken no action, and shall undertake or permit to arise no legal or contractual obligation, that results or would result in any postponement of the issuance or delivery of Stock or payment of benefits under any Award or the imposition of any other conditions on such issuance, delivery or payment, to the extent that such postponement or other condition would represent a greater burden on a Participant than existed on the 90th day preceding the Change in Control.   (b)                                 Limits on Transferability; Beneficiaries. No Award or other right or interest of a Participant under the Plan shall be pledged, hypothecated or otherwise encumbered or subject to any lien, obligation or liability of such Participant to any party, or assigned or transferred by such Participant otherwise than by will or the laws of descent and distribution or to a Beneficiary upon the death of a Participant, and such Awards or rights that may be exercisable shall be exercised during the lifetime of the Participant only by the Participant or his or her guardian or legal representative, except that Awards and other rights (other than ISOs and SARs in tandem therewith) may be transferred for estate planning purposes to one or more Beneficiaries or other transferees during the lifetime of the Participant, and may be exercised by such transferees in accordance with the terms of such Award, but only if and to the extent such transfers are permitted by the Committee pursuant to the express terms of an Award agreement (subject to any terms   13   and conditions which the Committee may impose thereon). A Beneficiary, transferee, or other person claiming any rights under the Plan from or through any Participant shall be subject to all terms and conditions of the Plan and any Award agreement applicable to such Participant, except as otherwise determined by the Committee, and to any additional terms and conditions deemed necessary or appropriate by the Committee.   (c)                                  Adjustments. In the event that any large and non-recurring dividend or other distribution (whether in the form of cash or property other than Stock), recapitalization, forward or reverse split, Stock dividend, reorganization, merger, consolidation, spin-off, combination, repurchase, share exchange, liquidation, dissolution or other similar corporate transaction or event affects the Stock such that an adjustment is determined by the Committee to be appropriate or, in the case of any outstanding Award, necessary in order to prevent dilution or enlargement of the rights of the Participant, then the Committee shall, in such equitable manner as it may determine, adjust any or all of (A) the number and kind of shares of Stock which may be delivered in connection with Awards granted thereafter, (B) the number and kind of shares of Stock by which annual per-person Award limitations are measured under Section 5(b), (C) the number and kind of shares of Stock subject to or deliverable in respect of outstanding Awards and (D) the exercise price, grant price or purchase price relating to any Award or, if deemed appropriate, the Committee may make provision for a payment of cash or property to the holder of an outstanding Option (subject to Sections 10(h) and (i)). In furtherance of the foregoing, a Participant who has a legally binding right to compensation under an outstanding Award shall have a legal right to an adjustment to such Award if the Award constitutes a “share-based payment arrangement” and there occurs an “equity restructuring” as such terms are defined under FASB ASC Topic 718. In addition, the Committee is authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards (including Performance Awards and performance goals and any hypothetical funding pool relating thereto) in recognition of unusual or nonrecurring events (including, without limitation, events described in the preceding sentence, as well as acquisitions and dispositions of businesses and assets) affecting the Company, any subsidiary or affiliate or other business unit, or the financial statements of the Company or any subsidiary or affiliate, or in response to changes in applicable laws, regulations, accounting principles, tax rates and regulations or business conditions or in view of the Committee’s assessment of the business strategy of the Company, any subsidiary or affiliate or business unit thereof, performance of comparable organizations, economic and business conditions, personal performance of a Participant, and any other circumstances deemed relevant; provided that no such adjustment shall be authorized or made if and to the extent that the existence of such authority (A) would cause Options, SARs, or Performance Awards granted under Section 7 to Participants designated by the Committee as Covered Employees and intended to qualify as “performance-based compensation” under Code Section 162(m) and regulations thereunder to otherwise fail to qualify as “performance-based compensation” under Code Section 162(m) and regulations thereunder, or (B) would cause the Committee to be deemed to have authority to change the targets, within the meaning of Treasury Regulation § 1.162-27(e)(4)(vi), under the performance goals relating to Options or SARs granted to Covered Employees and intended to qualify as “performance- based compensation” under Code Section 162(m) and regulations thereunder; and provided further, that adjustments to Non-409A Awards will be made only to the extent permitted under 409A.   (d)                                 Taxes. The Company and any subsidiary is authorized to withhold from any Award granted, any payment relating to an Award under the Plan, including from a distribution of Stock, or any payroll or other payment to a Participant, amounts of withholding and other taxes due or potentially payable in connection with any Award, and to take such other action as the Committee may deem advisable to enable the Company and Participants to satisfy obligations for the payment of withholding taxes and other tax obligations relating to any Award. This authority shall include authority to withhold or receive Stock or other property and to make cash payments in respect thereof in satisfaction of a Participant’s tax obligations, either on a mandatory or elective basis, in the discretion of the Committee, or in satisfaction of other tax obligations if such withholding will not result in additional accounting expense to the Company. Other provisions of the Plan notwithstanding, only the minimum amount of Stock deliverable in   14   connection with an Award necessary to satisfy statutory withholding requirements will be withheld, unless withholding of any additional amount of Stock will not result in additional accounting expense to the Company.   (e)                                  Changes to the Plan and Awards. The Board may amend, alter, suspend, discontinue, or terminate the Plan or the Committee’s authority to grant Awards under the Plan without the consent of stockholders or Participants, except that any amendment or alteration to the Plan shall be subject to the approval of the Company’s stockholders not later than the annual meeting the record date for which is at or following the date of such Board action if such stockholder approval is required by any federal or state law or regulation or the rules of any stock exchange or automated quotation system on which the Stock may then be listed or quoted, and the Board may otherwise, in its discretion, determine to submit other such changes to the Plan to stockholders for approval; provided that, without the consent of an affected Participant, no such Board action may materially and adversely affect the rights of such Participant under any previously granted and outstanding Award. (For this purpose, actions that alter the timing of federal income taxation of a Participant will not be deemed material unless such action results in an income tax penalty on the Participant.) The Committee may waive any conditions or rights under, or amend, alter, suspend, discontinue, or terminate any Award theretofore granted and any Award agreement relating thereto; provided that the Committee shall have no authority to waive or modify any Award term after the Award has been granted to the extent the waived or modified term would be mandatory under the Plan for any Award newly granted at the date of the waiver or modification; and provided further, that, without the consent of an affected Participant, no such Committee action may materially and adversely affect the rights of such Participant under such Award. Without the prior approval of stockholders, the Committee will not amend or replace previously granted Options in a transaction that constitutes a “repricing.” For this purpose, a “repricing” means: (1) amending the terms of an Option or SAR after it is granted to lower its exercise price, except pursuant to Section 10(c) hereof; (2) any other action that is treated as a repricing under generally accepted accounting principles; and (3) repurchasing for cash or canceling an Option or SAR at a time when its exercise or grant price is equal to or greater than the fair market value of the underlying Stock, in exchange for another Option, Restricted Stock, or other equity, unless the cancellation and exchange occurs in connection with a merger, acquisition, spin-off or other similar corporate transaction. A cancellation and exchange described in clause (3) of the preceding sentence will be considered a repricing regardless of whether the Option, Restricted Stock or other equity is delivered simultaneously with the cancellation, regardless of whether it is treated as a repricing under generally accepted accounting principles, and regardless of whether it is voluntary on the part of the Option holder.   (f)                                   Limitation on Rights Conferred under Plan. Neither the Plan nor any action taken hereunder shall be construed as (i) giving any Eligible Person or Participant the right to continue as an Eligible Person or Participant or in the employ or service of the Company or a subsidiary, (ii) interfering in any way with the right of the Company or a subsidiary to terminate any Eligible Person’s or Participant’s employment or service at any time, (iii) giving an Eligible Person or Participant any claim to be granted any Award under the Plan or to be treated uniformly with other Participants and employees, or (iv) conferring on a Participant any of the rights of a stockholder of the Company unless and until the Participant is duly issued or transferred shares of Stock in accordance with the terms of an Award.   (g)                                  Unfunded Status of Awards; Creation of Trusts. The Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation. With respect to any payments not yet made to a Participant or obligation to deliver Stock pursuant to an Award, nothing contained in the Plan or any Award shall give any such Participant any rights that are greater than those of a general creditor of the Company; provided that the Committee may authorize the creation of trusts and deposit therein cash, Stock, other Awards or other property, or make other arrangements to meet the Company’s obligations under the Plan. Such trusts or other arrangements shall be consistent with the “unfunded” status of the Plan unless the Committee otherwise determines with the consent of each affected Participant. The trustee of such trusts may be authorized to dispose of trust assets and reinvest the proceeds in alternative   15   investments, subject to such terms and conditions as the Committee may specify and in accordance with applicable law.   (h)                                 Certain Limitations on Awards to Ensure Compliance with Section 409A. For purposes of this Plan, references to an Award term or event (including any authority or right of the Company or a Participant) being “permitted” under Section 409A mean, for a 409A Award, that the term or event will not cause the Participant to be liable for payment of interest or a tax penalty under Section 409A and, for a Non-409A Award, that the term or event will not cause the Award to be treated as subject to Section 409A. Other provisions of the Plan notwithstanding, the terms of any 409A Award and any Non-409A Award, including any authority of the Company and rights of the Participant with respect to the Award, shall be limited to those terms permitted under Section 409A, and any terms not permitted under Section 409A shall be automatically modified and limited to the extent necessary to conform with Section 409A. For this purpose, other provisions of the Plan notwithstanding, the Company shall have no authority to accelerate distributions relating to 409A Awards in excess of the authority permitted under Section 409A, any distribution subject to Section 409A(a)(2)(A)(i) (separation from service) to a “specified employee” as defined under Section 409A(a)(2)(B)(i), shall not occur earlier than the earliest time permitted under Section 409A(a)(2)(B)(i), and any authorization of payment of cash to settle a Non-409A Award shall apply only to the extent permitted under Section 409A for such Award. Non-409A Awards that are “grandfathered” under Section 409A and that, but for such grandfathered status, would be deemed 409A Awards shall be subject to the terms and conditions of the Plan as amended and restated as of May 5, 2005 other than Sections 6(b)(ii) and 6(c)(ii), provided that if any provision adopted by amendment to the Plan or an Award Agreement after October 3, 2004, would constitute a material modification of a grandfathered Non-409A Award, such provision will not be effective as to such Award unless so stated by the Committee in writing with specific reference to this provision of Section 10(h). To further ensure compliance with the requirements of Code Section 409A, Awards other than grandfathered Awards shall be subject to the Company’s Section 409A Compliance Rules.   (i)                                     Certain Limitations Relating to Accounting Treatment of Awards. At any time that the Company is accounting for Awards that constitute “share-based payment arrangements” under FASB ASC Topic 718, the Company intends that, with respect to such Awards, the compensation measurement date for accounting purposes shall occur at the inception of the arrangement, unless the Committee specifically determines otherwise. Therefore, other provisions of the Plan notwithstanding, in order to preserve this fundamental objective of the Plan, if any authority granted to the Committee hereunder or any provision of the Plan or an Award agreement would result, under FASB ASC Topic 718, in an Award inadvertently being classified as a “liability” or a measurement date other than the date of inception of the arrangement, if the Committee was not specifically aware of such accounting consequence at the time such Award was approved, such authority shall be limited and such provision shall be automatically modified and reformed to the extent necessary to preserve the accounting treatment of the award intended by the Committee, subject to Section 10(e) of the Plan. This provision shall cease to be effective if and at such time as the Company is no longer account for equity compensation under FASB ASC Topic 718.   (j)                                    Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor its submission to the stockholders of the Company for approval shall be construed as creating any limitations on the power of the Board or a committee thereof to adopt such other incentive arrangements as it may deem desirable including incentive arrangements and awards which do not qualify under Code Section 162(m).   (k)                                 Payments in the Event of Forfeitures; Fractional Shares. Unless otherwise determined by the Committee, in the event of a forfeiture of an Award with respect to which a Participant paid cash or other consideration, the Participant shall be repaid the amount of such cash or other consideration. No fractional shares of Stock shall be issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, other Awards or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.   16   (l)                                     Awards to Participants Outside the United States. The Committee may modify the terms of any Award under the Plan made to or held by a Participant who is then resident or primarily employed outside of the United States in any manner deemed by the Committee to be necessary or appropriate in order that such Award shall conform to laws, regulations, and customs of the country in which the Participant is then resident or primarily employed, or so that the value and other benefits of the Award to the Participant, as affected by foreign tax laws and other restrictions applicable as a result of the Participant’s residence or employment abroad shall be comparable to the value of such an Award to a Participant who is resident or primarily employed in the United States. An Award may be modified under this Section 10(l) in a manner that is inconsistent with the express terms of the Plan, so long as such modifications will not contravene any applicable law or regulation or result in actual liability under Section 16(b) for the Participant whose Award is modified.   (m)                             Governing Law. The validity, construction and effect of the Plan, any rules and regulations under the Plan, and any Award agreement shall be determined in accordance with the Delaware General Corporation Law, the contract and other laws of the State of New York without giving effect to principles of conflicts of laws, and applicable federal law.   (n)                                 Preexisting Plan. Upon stockholder approval of the Plan as of the Effective Date, no further grants of Awards will be made under the Preexisting Plan.   (o)                                 Authorization of Option Exchange. At June 7, 2011, the Company’s stockholders approved the authorization of a “value-for-value” exchange of certain outstanding Options for Deferred Stock. Such approval met the requirements of Section 10(e) of the Plan (relating to “repricing” transactions). Any Option exchange implemented under this authorization must be commenced prior to the Company’s Annual Meeting of Stockholders in 2012, and must conform to the terms of the option exchange as described in the Company’s Proxy Statement dated April 25, 2011 (subject to any permitted modifications as described in such Proxy Statement).         (p)                                 Plan Effective Date and Termination. The Plan was adopted by the Board of Directors on April 24, 2003 and became effective upon its approval by the Company’s stockholders on the Effective Date. The Plan was amended and restated upon its approval by the Company’s stockholders on each of June 14, 2005, June 10, 2008, June 17, 2009 and June 7, 2011. Unless earlier terminated by action of the Board of Directors, the Plan will remain in effect until such time as no Stock remains available for delivery under the Plan and the Company has no further rights or obligations under the Plan with respect to outstanding Awards under the Plan; provided, however, that no new Awards may be granted more then ten years after the date of the latest approval of the Plan by stockholders of the Company.   17  

Exhibit 99.3 FORM 52-109F2 CERTIFICATION OF INTERIM FILINGS FULL CERTIFICATE I, W. William Boberg, President and Chief Executive Officer of Ur-Energy Inc., certify the following: 1. Review:I have reviewed the interim financial statements and interim MD&A (together, the “interim filings”) of Ur-Energy Inc. (the “issuer”) for the interim period ended June 30, 2010. 2. No misrepresentations:Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings. 3. Fair presentation:Based on my knowledge, having exercised reasonable diligence, the interim financial statements together with the other financial information included in the interim filings fairly present in all material respects the financial condition, results of operations and cash flows of the issuer, as of the date of and for the periods presented in the interim filings. 4. Responsibility:The issuer’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as those terms are defined in National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings, for the issuer. 5. Design:Subject to the limitations, if any, described in paragraphs 5.2 and 5.3, the issuer’s other certifying officer(s) and I have, as at the end of the period covered by the interim filings (a) designed DC&P, or caused it to be designed under our supervision, to provide reasonable assurance that (i) material information relating to the issuer is made known to us by others, particularly during the period in which the interim filings are being prepared; and (ii) information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted by it under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and (b) designed ICFR, or caused it 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 the issuer’s GAAP. Control framework:The control framework the issuer’s other certifying officer(s) and I used to design the issuer’s ICFR is similar to that of the Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). N/A N/A 6. Reporting changes in ICFR:The issuer has disclosed in its interim MD&A any change in the issuer’s ICFR that occurred during the period beginning on January 1, 2010 and ended on June 30, 2010 that has materially affected, or is reasonably likely to materially affect, the issuer’s ICFR. Date: July 30, 2010 /s/ W. William Boberg W. William Boberg President & Chief Executive Officer

OMB APPROVAL OMB Number:3235-0145 Expires:February 28, 2009 Estimated average burden Hours per response10.4 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No. )* The Pep Boys - Manny, Moe & Jack (Name of Issuer) Common Stock (Title of Class of Securities) 713278109 (CUSIP Number) April 28, 2008 (Date of Event Which Requires Filing of this Statement) Check the appropriate box to designate the rule pursuant to which this Schedule is filed: []Rule 13d-1(b) [X]Rule 13d-1(c) []Rule 13d-1(d) *The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMD control number. SEC 1745 (3-06) PAGE 1 OF 7 CUSIP No.713278109 1 Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only) Glenhill Advisors, LLC 13-4153005 2 Check the Appropriate Box if a Member of a Group (See Instructions) (a)[] (b)[ X ] 3 SEC Use Only 4 Citizenship or Place of Organization Delaware Number of 5 Sole Voting Power2,690,000 Shares Beneficially 6 Shared Voting Power0 Owned by Each 7 Sole Dispositive Power2,690,000 Reporting Person With: 8 Shared Dispositive Power0 9 Aggregate Amount Beneficially Owned by Each Reporting Person 2,690,000 10 Check if the Aggregate Amount in Row (9) Excludes Certain Shares(See Instructions)[] 11 Percent of Class Represented by Amount in Row (9) 5.2% 12 Type of Reporting Person (See Instructions) IA, HC PAGE 2 OF 7 CUSIP No.713278109 1 Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only) Glenn J. Krevlin 2 Check the Appropriate Box if a Member of a Group(See Instructions) (a)[] (b)[ X ] 3 SEC Use Only 4 Citizenship or Place of Organization United States Number of 5 Sole Voting Power2,690,000 Shares Beneficially 6 Shared Voting Power0 Owned by Each 7 Sole Dispositive Power2,690,000 Reporting Person With: 8 Shared Dispositive Power0 9 Aggregate Amount Beneficially Owned by Each Reporting Person 2,690,000 10 Check if the Aggregate Amount in Row (9) Excludes Certain Shares (See Instructions)[] 11 Percent of Class Represented by Amount in Row (9) 5.2% 12 Type of Reporting Person (See Instructions) IN, HC PAGE 3 OF 7 CUSIP No.713278109 1 Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only) Glenhill Capital Management, LLC 13-4146739 2 Check the Appropriate Box if a Member of a Group(See Instructions) (a)[] (b)[ X ] 3 SEC Use Only 4 Citizenship or Place of Organization Delaware Number of 5 Sole Voting Power0 Shares Beneficially 6 Shared Voting Power2,690,000 Owned by Each 7 Sole Dispositive Power0 Reporting Person With: 8 Shared Dispositive Power2,690,000 9 Aggregate Amount Beneficially Owned by Each Reporting Person 2,690,000 10 Check if the Aggregate Amount in Row (9) Excludes Certain Shares (See Instructions)[] 11 Percent of Class Represented by Amount in Row (9) 5.2% 12 Type of Reporting Person (See Instructions) IA, HC PAGE 4 OF 7 Item 1(a) Name of Issuer The Pep Boys - Manny, Moe & Jack Item 1(b) Address of Issuer's Principal Executive Offices 3111 West Allegheny Avenue Philadelphia, PA 19132 Item 2(a) Name of Person Filing Glenhill Advisors, LLC, Glenn J. Krevlin and Glenhill Capital Management, LLC. Glenn J. Krevlin is the managing member and control person of Glenhill Advisors, LLC. Glenhill Advisors, LLC is the managing member of Glenhill Capital Management, LLC.Glenhill Capital Management, LLC is the general partner and investment advisor of Glenhill Capital LP, a security holder of the issuer, and sole shareholder of Glenhill Capital Overseas GP, Ltd.Glenhill Capital Overseas GP, Ltd. is general partner of Glenhill Capital Overseas Master Fund, LP, a security holder of the issuer. Item 2(b) Address of Principal Business Office or, if none, Residence 598 Madison Avenue, 12th Floor New York, NY 10022 Item 2(c) Citizenship See the response(s) to Item 4 on the attached cover page(s). Item 2(d) Title of Class of Securities Common Stock Item 2(e) CUSIP Number 713278109 Item 3 If this statement is filed pursuant to §§240.13d-1(b) or 240.13d-2(b) or (c), check whether the person filing is a: Not Applicable PAGE 5 OF 7 Item 4 Ownership (a) Amount Beneficially owned: See the response(s) to Item 9 on the attached cover page(s). (b) Percent of Class: See the response(s) to Item 11 on the attached cover page(s), which was determined by dividing the number of shares beneficially held by the Reporting Person by 51,772,230, the number of shares of common stock issued and outstanding as reported in the Issuer’s Form 10-K filed with the Securities and Exchange Commission on May 1, 2008. (c) Number of shares as to which the person has: (i) Sole power to vote or to direct the vote: See the response(s) to Item 5 on the attached cover page(s). (ii) Shared power to vote or to direct the vote: See the response(s) to Item 6 on the attached cover page(s). (iii) Sole power to dispose or to direct the disposition of: See the response(s) to Item 7 on the attached cover page(s). (iv) Shared power to dispose or to direct the disposition of: See the response(s) to Item 8 on the attached cover page(s). 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. Not Applicable. Item 7 Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on By the Parent Holding Company. Not Applicable. 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. PAGE 6 OF 7 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. DATE: May 8, 2008 GLENHILL ADVISORS, LLC By: /s/ GLENN J. KREVLIN Name: Glenn J. Krevlin Title:Managing Member /s/ GLENN J. KREVLIN Name: Glenn J. Krevlin GLENHILL CAPITAL MANAGEMENT, LLC By:GLENHILL ADVISORS, LLC Managing Member By: /s/ GLENN J. KREVLIN Name:Glenn J. Krevlin Title:Managing Member PAGE 7 OF 7

Exhibit 10.41   ***Text Omitted and Filed Separately Confidential Treatment Requested Under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2   REVISION NO. 1 TO AGREEMENT FOR PRODUCTS AND SERVICES BETWEEN INVISION TECHNOLOGIES, INC. AND COORSTEK, INC.   THIS REVISION NO. 1 TO AN AGREEMENT FOR PRODUCTS AND SERVICES is made by and between CoorsTek, Inc., with offices located at 16000 Table Mountain Parkway, Golden, Colorado 80403 (hereinafter “CoorsTek” or  “Supplier”), and InVision Technologies, Inc., with offices located at 7151 Gateway Boulevard, Newark, California 94560 (hereinafter “InVision” or “Customer”).   WHEREAS, effective June 10, 2002, the parties to entered into the original version of this Agreement;   WHEREAS, since the effective date of the original agreement the parties have expanded the scope of their relationship;   WHEREAS, the parties now wish to amend certain provisions of their Agreement to fully reflect the terms of the relationship between them;   WHEREAS, the parties now wish to enter into this Revision No. 1 to the Agreement and intend for Revision No. 1 to be the Agreement controlling their relationship;   NOW, THEREFORE, in consideration of the promises, mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, Customer and Supplier agree as follows:   1.             DEFINITIONS The terms defined in this Section 1 shall have the meanings set forth below whenever they appear in this Agreement, unless a different definition is described for a particular Section or provision:   1.1.                            “Affiliate” means (i) any corporation, subsidiary, or business entity forty percent (40%) of which is owned directly or indirectly by Customer, or (ii) any corporation which directly or indirectly owns forty percent (40%) or more of Customer, or (iii) any corporation, subsidiary, or business entity under the direct or indirect control of such corporation, subsidiary, or business entity as described in (i) or (ii).   1.2.                            “Agreement” means this written contract between Customer and Supplier covering the purchase of Products and Services together with the Statement of Work, attached exhibits, and amendments to this Agreement issued in accordance with the Section 25 entitled “Amendments”.   1.3.                            “Liabilities” means all judgments, orders, awards, claims, damages, losses, liabilities, costs and expenses, including, but not limited to, court costs and reasonable attorneys’ fees.     1.4.                            “Change” means a Customer or Supplier proposed change to the Supplier’s obligations hereunder.   1.5.                            “Customer” means InVision Technologies, Inc. and shall also include any Affiliate of InVision that places any Order(s) or obtains any Products or Services under this Agreement.   1.6.                            “Final Acceptance Test” means inspection by the Federal Aviation Administration (FAA), an entity approved by the FAA, or other authorized government authority to perform such test of any Products delivered under this Agreement.   1.7.                            “Order(s)” means a written or electronic offer by Customer for Products or Services that shall be deemed to incorporate all   1.8.                            “Products” means any deliverables under this Agreement, including assemblies, components and subassemblies associated with a System.   1.9.                            “Services” means the work to be performed by Supplier under this Agreement in providing Supply Chain Management, Assembly Services, or field service support and excludes work performed by Supplier in providing Products.   1.10.                     “Statement(s) Of Work” means the written instruments made part of this Agreement by this reference describing, among other things, the scope of the Products to be delivered or Services to be performed by Supplier hereunder, the time frame for completion thereof and the fee(s) associated therewith.   1.11.                     “Supplier” means CoorsTek, Inc., and shall also include any Affiliate of CoorsTek that provides any Products or Services under this Agreement.   1.12.                     “System” means an InVision model CTX 2500, CTX 5500DS, or CTX9000DSi explosive detection system (EDS).   2.             TERM This Agreement shall commence upon the execution hereof and shall continue until June 9, 2003 and may be renewed for consecutive one-year term(s) if Customer provides Supplier with written notice of its intent to renew at least 30 days prior to expiration.   3.             TERMINATION 3.1.                            The rights and obligations created herein shall be subject to termination only in accordance with the termination provisions of this Agreement.   3.2.                            Either party to this Agreement shall have the right to terminate a singular Statement of Work upon the following conditions.  In the event of a breach of a material term of a singular Statement of Work, the non-breaching party shall give the breaching party written notice of the breach.  The breaching party will have ten (10) business days to cure such breach or within ten (10) business days of receiving the notice, must provide to the non-breaching party an acceptable plan to cure the breach.  Failure to cure the breach or to set forth an acceptable plan to cure the breach within the allotted time frame shall give the non-breaching party the right to immediately terminate that singular Statement of   2   Work for cause pursuant to the wind down provision contained in the subject Statement of Work   3.3.                            Customer shall have the right to terminate this Agreement if Customer’s contract with the Federal Aviation Administration and/or Transportation Security Administration is terminated or substantially reduced by the government. Upon written notice of such a termination, Supplier shall cease performance of all Services and manufacture of all Products, as provided in the applicable Statement of Work(s).   3.4.                            Termination under this Section 3 shall not limit or affect either party’s rights or obligations arising under this Agreement prior to such termination.   4.             SCOPE OF PRODUCTS AND SERVICES   4.1.                            Services - The description of the Services, together with the time(s) of performance are described in this Agreement and Attachment 1 the Supply Chain Management Services Statement of Work and Attachment 2 Assembly Services Statement of Work. The Services shall be performed upon such terms as set forth in the Statements of Work and this Agreement.   4.2.                            Products – Attachment 3 the Statement of Work for Components contains a description of the Products to be provided under this Agreement.  Products shall be manufactured and delivered upon such terms as set forth in Attachment 3 and this Agreement.   4.3.                            Field Service or Spares - Attachment 4, when and if negotiated by the parties will contain the Statement of Work for Field Services or Spares to be provided under this Agreement, if any.   5.             AGREEMENT CHANGE ORDERS   5.1.                            During the term of this Agreement, Customer or Supplier agree to meet not less frequently than once per calendar quarter to review Supplier’s performance under this Agreement.  If as a result of these quarterly meetings, or as otherwise may arise during the term of this Agreement, Customer proposes a change in Supplier’s obligations hereunder, then all such Changes shall be implemented pursuant to the procedures set forth in this Section.   5.2.                            If Customer desires to propose a Change, it shall deliver a written notice to the Supplier describing the Change proposal and establishing a reasonable period for Supplier to respond.  Supplier shall respond to such proposal within the time stated in the proposal by preparing and delivering to the Customer, a written document indicating:   5.2.1.                  the effect of the proposal, if any, on the amounts payable by Customer under this Agreement;   5.2.2.                  the effect of the proposal, if any, on Supplier’s performance of its obligations under this Agreement;   5.2.3.                  the anticipated time schedule for implementing the proposal; and   3   5.2.4.                  any other information requested in the proposal or reasonably necessary for Customer to make an informed decision regarding the proposal.   5.3.                            If Customer accepts the change proposal response by the Supplier, the parties shall amend this Agreement to incorporate such changes.   5.4.                            No change shall be made by the Supplier without the written consent of Customer.  If Supplier desires to propose a Change, it shall deliver a written request to Customer, which shall include the information described in Section 5.2 above.   5.5.                            In the event that Customer and Supplier can not agree on a Change, then Supplier will perform the Change as instructed by Customer, and Customer will pay a provisional fee in an amount as determined by Customer.  The actual amount of the fee will be determined in accordance with the Dispute Resolution clause 20 of this Agreement.   6.             FEE(S) As consideration for Supplier’s manufacture of the Products and performance of the Services, Customer agrees to pay Supplier the Fee(s) set forth in the   7.             INVOICES AND PAYMENTS Payment terms are net [***] days unless noted otherwise in the applicable Statement of Work.  A late payment charge of [***]% per month (annual rate of [***]%) will be added to past due accounts, unless other arrangements are made.  All orders are subject to management approval of and periodic review of credit, export and payment terms, which may be modified by Supplier on reasonable notice for good cause.  When Wire Remittance is required or necessary, remittance should be made to:   COORSTEK c/o LaSalle Bank National Association ABA #: 0071000505 Swift #:  [***] Acct #:  [***]   When Check Remittance is required or necessary, checks should be sent to:   COORSTEK c/o Bank of America 135 South LaSalle Dept. # 3193 Chicago, Illinois   60674-3193   8.             WARRANTIES   Except as set forth in the applicable Statement of Work SUPPLIER MAKES NO OTHER WARRANTY OF ANY KIND WHATEVER, EXPRESS OR IMPLIED.  SUPPLIER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.   9.             CONFIDENTIALITY/PROTECTION OF PROPRIETARY RIGHTS   All of the Customer’s specifications and processes are Confidential Information, and shall be protected from disclosure as provided in the Non-Disclosure Agreement between Customer and   4   Supplier dated January 8, 2002, attached to this Agreement as Attachment 6 and made a part hereof.   10.          INDEPENDENT CONTRACTOR Supplier and Customer hereby declare and agree that they are engaged in independent businesses and will perform their respective obligations under this Agreement as independent contractors and not as the agent or employee of the other party; that the persons performing services hereunder are not agents or employees of the other party; that each party has and hereby retains the right to exercise full control of and supervision over the performance of its obligations hereunder and full control over the employment, direction, compensation and discharge of all employees assisting in the performance of such obligations; that each party will be solely responsible for all matters relating to payment of its employees, including compliance with workers’ compensation, unemployment, disability insurance, social security withholding, and all other federal, state and local laws, rules and regulations governing such matters; and that each party will be responsible for its own acts and those of its agents, employees and subcontractors during the performance of its obligations under this Agreement. Each party agrees that its employees are not entitled to unemployment insurance benefits from the other party as a result of performing under this Agreement.  Each party is responsible for and shall pay all assessable federal and state income tax on amounts paid under this Agreement.   11.          INDEMNITY 11.1.                     Customer shall indemnify and hold harmless Supplier, its owners, parents, Affiliates, subsidiaries, agents, directors and employees from any Liabilities arising from and in connection with Supplier providing Services or Products under this Agreement or from Customers’ use of Product(s) or the acts or omissions of Customer, its agents and employees and others under its direction or control except to the extent such Liabilities are caused by or are the result of the negligence or willful misconduct of Supplier.  Such Liabilities shall include, but not be limited to, those attributable to personal injury, sickness, disease or death; and/or result from injury to or destruction of real or personal property including loss of use thereof, theft, misuse or misappropriation.   11.2.                     Supplier shall indemnify and hold harmless Customer, Services or Products under this Agreement or the acts or omissions of Supplier, its agents and employees and others under its direction or control except to the extent such Liabilities are caused by or are the result of the negligence or willful misconduct of Customer.  Such Liabilities shall include, but not be limited to, those attributable to personal injury, sickness, disease or death; and/or result from injury to or destruction of real or personal property including loss of use thereof, theft, misuse or misappropriation.   11.3.                     Customer shall indemnify and hold harmless Supplier, from and against all Liabilities arising out of or resulting from (i) assertions under workers’ compensation or similar employee benefit acts made by Customer or any of Customer’s employees, agents, subcontractors, or subcontractors’ employees or agents, or (ii) any other claim which may be asserted by any of Customer’s employees, customers, agents, subcontractors or subcontractor’s employees or agents against Supplier, its owners, parents, affiliates, subsidiaries, agents, directors and employees except to the extent such claim is the direct result of the gross negligence or willful misconduct of Supplier.   5   11.4.                     Supplier shall indemnify and hold harmless Customer, under workers’ compensation or similar employee benefit acts made by Supplier or any of Supplier’s employees, agents, subcontractors, or subcontractors’ Supplier’s employees, suppliers (but not including suppliers under supply chain management services), agents, subcontractors or subcontractor’s employees or agents against Customer, its owners, parents, affiliates, subsidiaries, agents, directors and employees except to the extent such claim is the direct result of the gross negligence or willful misconduct of Customer.   11.5.                     The foregoing indemnification obligations are conditioned upon the following:   11.5.1.           The party claiming a right to be indemnified (“Indemnified Party”) notifies the other party (“Indemnifying Party”) within ten (10) days of receipt or notice of any claim or action for which the Indemnified Party will seek indemnification;   11.5.2.           The Indemnifying Party has sole control of the defense and/or settlement of any claim;   11.5.3.           The Indemnified Party shall furnish to the Indemnifying Party, upon request, information available to the Indemnified Party for such defense; and   11.5.4.           The Indemnified Party shall provide the Indemnifying Party with reasonable assistance in connection with such defense.   12.          INSURANCE   12.1.                     Supplier will, at its expense, procure and maintain insurance on all of its operations, including the policies listed below. Supplier will furnish certificates of insurance as requested.   12.1.1.    Workers’ Compensation Insurance in the statutory amount.   12.1.2.    Employer’s Liability Insurance, in the amount of $[***] per occurrence.   12.1.3.           Commercial General Liability Insurance, including coverage for property damage and personal injury, in the amount of $[***] per occurrence.   12.1.4.           Property Insurance, including coverage for Customer owned material located on Supplier’s premises and in transit, in the amount of $[***] per occurrence.  Commercial Automobile Liability Insurance with a $[***] combined single limit.   12.2.                     Customer will, at its expense, procure and maintain Customer will furnish certificates of insurance as requested.   12.2.1.           Workers’ Compensation Insurance in the statutory amount.   12.2.2.           Employer’s Liability Insurance, in the amount of $[***] per occurrence.   6   12.2.3.           Commercial General Liability Insurance, including coverage for   12.2.4.           Products liability coverage, including aviation related products, war risk and terrorism coverage, including coverage for property   12.2.5.           Commercial Automobile Liability Insurance with a $[***] combined single limit.   13.          PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET INDEMNIFICATION   13.1.                     Customer shall indemnify and hold harmless Supplier, from and against all Liabilities that may result by reason of any infringement or claim of infringement of any patent, trademark, copyright, trade secret or other proprietary right relating to the design and/or use of the Systems.  Customer will defend and/or settle at its own expense any action brought against Supplier to the extent that it is based on a claim that the System design(s) and/or the use thereof, infringe any patent, trademark, copyright, trade secret or other proprietary right.   13.2.                     If a preliminary or final judgment shall be obtained against Supplier based upon its providing of Services or Product(s) or any part thereof by reason of alleged infringement, or if in Supplier’s opinion, such System(s) or any part thereof, and/or the use thereof are likely to become subject to a claim for infringement, Customer shall, at its expense and option and without any effect or waiver of any right Supplier may possess at either law or equity, either: (1) procure for Supplier the right to continue manufacturing and using such System(s); or (2) replace or modify System(s) so that it becomes non-infringing but only if the modification or replacement does not adversely affect the Supplier’s rights or ability to use same as specified herein.   13.3.                     Supplier shall indemnify and hold harmless Customer, other proprietary right relating to the Supplier’s supply chain management and/or manufacturing and assembly processes.  Supplier will defend and/or settle at its own expense any action brought against Customer to the extent that it is based on a claim that the supply chain management and/or manufacturing and assembly processes and/or the use thereof, infringe any patent, trademark, copyright, trade secret or other proprietary right.   13.4.                     If a preliminary or final judgment shall be obtained against Customer based upon its providing of supply chain management and/or manufacturing and assembly processes or any part thereof by reason of alleged infringement, or if in Customer’s opinion, such supply chain management and/or manufacturing and assembly processes or any part thereof, and/or the use thereof are likely to become subject to a claim for infringement, Supplier shall, at its expense and option and without any effect or waiver of any right Customer may possess at either law or equity, either: (1) procure for Customer the right to continue using such Services; or (2) replace or modify Services so that they become non-infringing but only if the modification or replacement does not adversely affect the Customer’s rights or ability to use same as specified herein.   7   13.5.                     The foregoing indemnification obligations are   13.5.1.           The party claiming a right to be indemnified (“Indemnified seek indemnification;   13.5.2.           The Indemnifying Party has sole control of the defense and/or   13.5.3.           The Indemnified Party shall furnish to the Indemnifying Party, and   13.5.4.           The Indemnified Party shall provide the Indemnifying Party   14.          ADVERTISING; PUBLICITY Customer and Supplier grant to each other permission to reference the other in advertising, promotional efforts and publicity so long as the party originating the advertisement, promotional effort or publicity provides the other party prior notice.   Nothing in this section shall prohibit either party from making any disclosure ordered by a court or agency of competent jurisdiction or   15.          PLANT AND WORK RULES Supplier and Customer, while on the premises of the other shall comply with all plant rules and regulations including, where required by governmental regulation, submission of satisfactory clearance from the appropriate governmental authorities.   16.          FORCE MAJEURE Neither party shall be liable for failure to perform when such failure is caused by unforeseeable force majeure circumstances.  If such circumstances occur, the party injured by the other’s inability to perform may elect to (1) terminate that portion of this Agreement adversely impacted by the failure to perform and as specified in Section 3 of this Agreement; and/or (2) suspend that portion of this Agreement adversely impacted by the failure to perform for the duration of the force majeure circumstances, and then resume performance under this Agreement.  The party experiencing the force majeure circumstances shall cooperate with and assist the injured party in all reasonable ways to minimize the impact of such circumstances on the injured party, including assisting in locating and arranging for substitute Products or Services.   17.          SUPPLIER’S RIGHT FOR FIRST OPPORTUNITY TO SUBMIT OFFER Customer shall give Supplier the first opportunity to submit an offer to provide Supply Chain Management Services related to any new products outsourced by Customer.   18.          RESERVATION OF RIGHTS Neither party’s delay or failure in enforcing any right or remedy afforded hereunder or by law shall prejudice or operate to waive that right or remedy or any other right or remedy which it shall have available; nor shall any such failure or delay operate to waive either party’s rights to any remedies due to a future breach of this Agreement, whether of a like or different character.   8   19.          SEVERABILITY In the event that a court or a governmental or regulatory agency with proper jurisdiction determines that this Agreement or a provision of this Agreement is unlawful respectively, this Agreement, or that provision of this Agreement, to the extent it is unlawful, shall terminate.  If a provision of this Agreement is terminated but the parties can continue legally, commercially and practicably without the terminated provision, the remainder of this Agreement shall continue in effect.  No additional liability shall attach to either party as a result of any such termination.   20.          DISPUTE RESOLUTION Any controversy, claim, or dispute arising out of or relating to this Agreement, or the breach thereof, shall be settled through good faith negotiation between the parties.  In the event that said negotiations are not successful, the controversy, claim, or dispute shall be resolved through arbitration.  Such arbitration shall take place in San Francisco, California and shall proceed in accordance with Commercial Arbitration Rules of the American Arbitration Association and the laws of the State of California without regard to the provisions thereof concerning conflict of laws.  All costs and expenses of the arbitration (including fees of the arbitrators) shall be split equally between the parties.  The non-prevailing party shall pay the prevailing parties attorney fees in any such arbitration.   21.          NONEXCLUSIVE AGREEMENT Except as set forth in section 17 above, it is expressly understood and agreed that this Agreement does not grant to Customer or Supplier any exclusive privileges or rights and Supplier and/or Customer may contract with other Customers and/or Suppliers to provide comparable services.   22.          ASSIGNMENT Neither party may assign this Agreement without the express written permission of the other party.  Provided, however, that a change in control of a party, by merger, acquisition or other change in stock ownership, shall not be deemed to be an assignment.   23.          SETOFF All claims for money due or to become due from one party shall be subject to deduction or setoff by the other party by reason of any counterclaim arising out of this or any other transaction with that party.   24.          REMEDIES CUMULATIVE The remedies provided herein shall be cumulative and in addition to any other remedies provided by law or equity.   25.          AMENDMENTS No change or modifications of any terms or conditions herein shall be valid or binding on either party unless made in writing and signed by Customer and an authorized representative of Supplier.   9   26.          NOTICES Any notice required to be given hereunder shall be in writing and shall be addressed to the parties at their respective address set forth below.  All notices shall be deemed given five (5) days after mailing by certified mail, return receipt requested, and one (1) day after sending by a nationally recognized overnight courier service which provides a delivery receipt.   Customer:   Supplier: InVision Technologies   CoorsTek, Inc. 7151 Gateway Boulevard   Legal Services Office Newark, California 94560   16000 Table Mountain Parkway     Golden, Colorado 80403   27.          WAIVER Either party’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege, or either party’s waiver of any breach hereunder shall not be construed to be a waiver, or waive any other terms, conditions, or privileges, whether of the same or similar type.   28.          GOVERNING LAW This Agreement and all transactions hereunder shall be governed by and construed in accordance with the laws of the State of California, without regard to any provisions regarding conflict of laws.   29.          INTELLECTUAL PROPERTY All intellectual property rights in Supplier’s supply chain management and manufacturing and assembly processes, including without limitation utility patent, design patent, trademark and copyright, are the sole property of Supplier.  All intellectual property rights in the Product, including without limitation utility patent, design patent, trademark and copyright, all Customer specifications, and all methods of manufacturing the Products as provided by Customer, are the sole property of Customer.  If Supplier makes an improvement to the Products, the specifications or the method of manufacturing the Products, then Supplier hereby grants Customer a perpetual, irrevocable, exclusive and royalty-free license to use such improvements.  Notwithstanding the foregoing, if Supplier makes an improvement to a method of manufacturing the Products that can be applied to products that do not compete with Customer’s Products, then Supplier’s grant of license shall be non-exclusive and Supplier shall not grant a license to any party that competes, directly or indirectly, with Customer.   30.          LIMITATION OF LIABILITIES Notwithstanding any other provision of this Agreement, neither party shall be liable to the other for special, indirect, consequential or incidental losses or damages of any kind or nature whatsoever, including but not limited to lost profits, lost records or data, lost savings, loss of use of facility or equipment, loss by reason of facility shut-down or non-operations or increased expense of operations, or other costs, charges, penalties, or liquidated damages, regardless of whether arising from breach of contract, warranty, tort, strict liability or otherwise, even if advised of the possibility of such loss or damage or if such loss or damage could have been reasonably foreseen.   10   31.          EXPORT AND IMPORT CONTROL   31.1.       The Product is subject to the Export Control regulations of the United States Department of State and/or the United States Department of Commerce.  Customer agrees to provide Supplier with all necessary information to comply with the all export laws, controls and regulations of the United States Government.  Customer will be the United States Principal Party of Interest and accordingly, Customer shall be responsible and liable for all aspects of export compliance.   31.2.       Customer will be the Importer of Record and accordingly shall be responsible and liable for all aspects of import compliance necessary to obtain System components.   32.          GOVERNMENT SUBCONTRACT This Agreement is a subcontract under Customer’s contract with the Federal Aviation Administration, Contract No. DTFA01-02-C-00023.  Supplier shall comply with the contract clauses listed below.  Supplier may obtain the full text of these clauses via Internet at: http://fast.faa.gov (on this web page, select “toolsets”, then “procurement toolbox”).   3.6.2-9 Equal Opportunity August 1998 3.6.2-12 Affirmative Action for Special Disabled and Vietnam Era Veterans January 1998 3.6.2-13 Affirmative Action for Workers with Disabilities April 2000 3.2.2.3-8 Audit and Records April 1996   33.          DEFENSE PRIORITY This Agreement is subject to a Defense Priority and Allocation System (DPAS) Rating of DO-H8.  Supplier shall fill this order in compliance with the DPAS regulations, 15 CFR Part 700.   34.          SURVIVAL The following Sections of this Agreement shall survive any termination thereof, 1, 3, 4, 6, 7, 8, 9, 11, 13, 17, 18, 19, 20, 26, 27, 28, 29, 30, 31, 35, 36 and 37.   35.          HEADINGS Headings are intended solely as a convenience and shall not control the meaning or interpretation of any provision of this Agreement.   36.          CONSTRUCTION The parties acknowledge that they and their respective counsel have reviewed this Agreement in its entirety and have had a full and fair opportunity to negotiate its terms.  Each party therefore waives all applicable rules of construction that any provision of this Agreement should be construed against its drafter, and agrees that all provisions of the Agreement shall be construed as a whole, according to the fair meaning of the language used.   11   37.          ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties hereto and supersedes any previous agreements or understandings whether oral or written.  The printed terms and conditions contained in purchase orders, invoices or other documents issued by Customer with respect to this Agreement, whether previously or in the future, shall be of no effect and shall be superseded by this Agreement.  In the event of any conflict between or among any documents which are part of this Agreement, precedence shall be given first to the text of this Agreement and second to its Attachments, and third to its Exhibits. Any term or condition, other than delivery date, quantity or price terms, on an Order, acknowledgment form, or other forms or documents will not apply and are objected to, unless such term is approved in writing by an authorized representative of each party.   IN WITNESS WHEREOF the parties have caused this Agreement to be executed by their duly authorized representatives as of the last date of signature written here below.   CoorsTek, Inc.: InVision Technologies:         By: /s/ David Morosoli   By: /s/ Brad Dudschus   Name: David Morosoni Name: Brad Dudschus Title:   V.P. Assembly Operations Title:   Supply Chain Operations Date: 1/24/03   Date: 1-24-03     12   ATTACHMENT 1 SUPPLY CHAIN MANAGEMENT SERVICES STATEMENT OF WORK TO AGREEMENT FOR SERVICES   This Statement of Work is attached to and made a part of that certain Agreement for Services (“Agreement”), by and between CoorsTek, Inc., (“Supplier”) and InVision Technologies (“Customer”).   1.     Services Description   a.       Overall:  Supplier shall receive instructions from Customer to carry out Supply Chain Management (SCM) Services in the performance of this Agreement, including procurement, for Customer related to the assembly of the Systems.  Supplier will be responsible for managing (on behalf of Customer) an estimated 350 component suppliers.  Supplier will provide a facility for the receipt and inspection of all components purchased from suppliers.   b.       Procurement Planning and Execution:  Based solely on Customer’s released Master Production Schedule and Customer-controlled Bills of Materials, Supplier will generate Materials Resource Planning (MRP) to determine order requirements; Supplier will negotiate price, lead time, and delivery on behalf of Customer; Supplier, on behalf of Customer using forms provided by or approved by Customer will use both traditional (discrete Purchase Orders (PO)) and more advanced (Vendor Managed Inventory, Just-in-Time/Kanbans) purchasing mechanisms to bring the required inventory into the physical and logical system; it is the Customer’s intent that the Supplier execute the procurement activities to meet all firm-planned orders reflected in the Master Production Schedule, to mitigate material liability,  and to plan procurement activities to meet the forecasted demand; all changes to Customer’s Approved Vendor List / Approved Parts List need the Customer’s approval and must pass through the Change Notification process described in Section 5 of the Agreement, to cut-in the approved change; Supplier will ensure fair and equitable treatment of all multiple-source suppliers given equal performance in terms of cost, schedule, and quality.   c.       Receiving, Receiving Inspection, and Receiving Test:  Based on Customer’s designations for receiving inspection and component-level testing, Supplier, either directly or through suppliers authorized by Customer will evaluate incoming materials to ensure conformance to standards; known “good” product will be accepted and stored by the Supplier; non-conforming material will be immediately returned to the vendor by the Supplier.   d.       Accounts Payable Administration:  Based on confirmed “good” product (see section above) and accepted receipts, Supplier will supply Customer with weekly check run requirements along with auditable records (POs, shipping documents, receiving documents); Supplier will transfer to Customer’s system (ROI*) the following information by cost category (standard cost, PPV, freight, tooling, NRE, expedite charges).   e.       Inventory Management and Control:  Supplier will physically store and control Customer’s inventory at several locations (Central Warehouse, WIP Warehouses, and a single Material Review Board (MRB) Warehouse); logically, the detailed inventory records and transactions will reside in the Supplier’s Enterprise Resource (ERP) system; Supplier will provide on-site support to ensure accurate transactions at the manufacturing sites (Supplier’s and Customer’s); Supplier will conduct on-going cycle count activities as well and will review all adjustments with Customer – Customer retains the responsibility to approve adjustments; Customer-defined reports and audits will be used to verify the accuracy of the Supplier’s inventory control system.   13   f.        Material Handling:  Supplier will provide material handlers who will be responsible for the line-side supply using Kanbans and Demand Flow techniques; Supplier’s material handlers will move known “good” material to the line to prevent stock-outs and will rapidly remove/disposition defective material; additionally, Supplier will actively manage the shortage list – expediting material as required to ensure continuity of supply to both production sites; Supplier will measure delivery performance to each site and will regularly review performance with Customer.   g.       Material Review Board (MRB) for Discrepant Items:  Supplier will maintain a physical MRB at  both assembly sites and one logical MRB in its ERP system; Supplier will clear MRB on a daily basis working with Customer and any other Contract Manufacturer; Supplier owns responsibility for driving dispositioning material for continued use or re-work; Supplier retains responsibility for returning material to vendor when it cannot be used in the production process; Supplier will collect and report quality statistics based on the MRB activity; Supplier will regularly measure and report performance to Customer and will drive continuous improvement of the supply base.   h.       Return Material Authorization (RMA) and Return to Vendor (RTV) for Components/Sub-systems:  When Supplier finds defective materials, it will request RMAs from the vendors and the manage the returns process; Supplier will manage its MRP to compensate for the discrepant material and will work with the vendors to prevent any stock-outs; Supplier will generate credits to Customer based on the returns.   2.     Fee   a.       Non-Recurring Expenses (“NRE”). Supplier will submit proposed NRE charges for approval prior to initiating order.  Supplier will bill Customer [***] for NRE incurred during the [***].  NRE is intended to cover production set-up expenses including extraction, testing areas, assembly fixtures, tooling fixtures, electrical accommodations, etc.  An NRE, not to exceed $[***], will be reimbursed by Customer for the inclusion of CTX9000Dsi SCM activities.   b.       Fee.  Supplier shall issue an invoice to Customer[***] based upon number of unit starts as determined by gantries placed at assembly station 1 as illustrated in Attachment 6 Business Structure and Materials Management Overview.  The addition of material management services for related products such as field support is possible and the rate structure will be adjusted by mutual consent of the Supplier and Customer to accommodate changes in quantity/volume that may result.   •                  Q1 2003 SCM Fee:  Based upon a quarterly combined volume estimate of [***] units the SCM fee for the CTX 2500 is $[***] per unit, the SCM fee for the CTX 5500 is $[***] per unit, and the SCM fee for the CTX 9000 is $[***] per unit. •                  SCM Fees for subsequent quarters will be determined based upon the quantity of systems forecast by InVision for the quarter.   3.     Inspection and Acceptance a.     Inspection - Customer may inspect Services performed by Supplier and/or its subcontractors in progress or completed at any time. b.     Acceptance shall be deemed to occur no later than when Customer issues payment for SCM Services in accordance with Section 2 of this SOW   14   4.     Warranty For the Services provided under this Statement of Work, Supplier warrants that the Services shall be performed in accordance with a reasonable standard of care and to the reasonable satisfaction of Customer.   5.     Schedule Supplier shall begin satisfactory implementation of supply chain management services no later than May 1, 2002.  CTX9000Dsi SCM activities will begin no later than October 1, 2002.   6.     Wind down of Supply Chain Management Services a.     Termination for Cause Procedure - Upon termination for cause of the SCM Services required under this SOW by either party the following shall occur: i.                  Supplier will cease all work being performed under this SOW. ii.              Supplier will deliver to Customer all finished Product, work in process, and raw materials and take all reasonable measures to protect Customer’s property in Supplier’s possession. iii.          Each party shall retain rights to intellectual property such party brought to this Agreement and each party shall be bound by all confidentiality, intellectual property, warranty and indemnity obligations in accordance with the iv.             Customer will pay Supplier for SCM Services performed and for all SCM Services performed in accordance with this SOW and for reasonable and necessary expenses which have accrued to the date of termination less any amounts previously paid. b.     Termination Procedure at End of Agreement Term- Upon termination of this SOW other than for cause the following shall occur: i.                  No later than 30 days from the effective date of the termination Customer shall provide Supplier with a Notice of Termination including: 1.              The effective termination date. 2.              A transition plan including but not limited to details of  (1) the transfer of all finished Product, work in process, raw materials, records, data and other information owned by Customer and used by Supplier in providing SCM Services and (2) for all other activities required by Customer related to the termination of this SOW.  The transition plan shall also include a reasonable schedule for these activities. ii.              According to the schedule in the transition plan, Supplier will cease all work being performed under this SOW. iii.          Supplier will take all reasonable measures to protect Customer’s property in Supplier’s possession. iv.             Each party shall retain rights to intellectual property such party used in conjunction SCM Services and each party shall be bound by all confidentiality, intellectual property, warranty and indemnity obligations in accordance with the terms and conditions of this Agreement. v.                 Supplier will have no obligation to train a third party to provide SCM Services to Customer. vi.             Customer will pay Supplier for SCM Services performed and for all SCM Services performed in accordance with this SOW, for reasonable and necessary expenses which have accrued to the date of termination, less any amounts previously paid, plus any costs incurred by Supplier’s in implementation of the transition plan. c.     Termination for Convenience Procedure- Upon termination of this SOW for the convenience of the TSA, the following shall occur: i.                  The Customer shall provide Supplier with a Notice of Termination including:   15   2.     A transition plan including but not limited to details of  (1) the transfer of all finished Product, work in process, raw materials, records, data and other information owned by Customer and used by Supplier in providing Assembly Services and (2) for all other activities required by Customer related to the termination of this SOW.  The transition plan shall also include a ii.              Supplier will immediately cease all work being performed under this SOW, except for work specified in the transition plan required by Customer to terminate this SOW. party used in conjunction Assembly Services and each party shall be bound by all provide Assembly Services to Customer. vi.             Customer will pay Supplier for Assembly Services performed and for all Assembly Services performed in accordance with this SOW, for reasonable and necessary expenses which have accrued to the date of termination, less any of the transition plan   16   ATTACHMENT 2 ASSEMBLY AND INTEGRATION SERVICES STATEMENT OF WORK TO AGREEMENT FOR SERVICES     1.     Services Description   a.     Overall:  Supplier shall receive instructions from Customer to carry out Assembly and Integration Services in the performance of this Agreement.  Supplier will provide all necessary labor, facilities and infrastructure required to perform the assembly services.  This service does not include Customer’s Quality Assurance and Factory Acceptance Testing.   b.     Assembly:  Supplier will build sub-assemblies and complete mechanical/electrical assembly to Customer’s specifications.   c.     Bay Test:  Supplier will manage the “powering on” of the System, align the X-Ray Tube, Collimeter, and Detectors per specification, and prepare the system for integration; system-level rework to bring the System into specification will be conducted by the Supplier as part of this effort.   d.     Integration:  Supplier will integrate the System’s hardware and software using Customer-provided instructions, work sequences, and specifications; system-level rework to bring the System into specification will be conducted by the Supplier as part of this effort.   e.     Manufacturing Support through Quality Assurance (QA) and Factory Acceptance Testing (FAT):  When Supplier notifies Customer that the System is ready for QA or FAT, Customer expects a fully capable and compliant System; if the System fails to meet the QA or FAT specifications during testing, Customer will notify Supplier of the discrepancy and the Supplier will rework the System and resubmit it for testing; Supplier maintains responsibility for the System until it ships complete from the site.   f.      In-process Rework (to meet product specification or based on Customer-approved MRB dispositions):  Supplier to manage internal rework required to bring the System into specification and to pass QA/FAT tests for first-run products.   2.     Fee fixtures, electrical accommodations, etc. b.     Customer expects to see declining costs associated with assembly of the Systems over time based on the high volumes and expected learning c.     An assembly fee for the CTX 2500 of $[***] per unit will be incurred for the second quarter of 2002 based on Customer’s acceptance of the work by Supplier d.     An assembly fee for the CTX 5500 of $[***] per unit will be incurred for Supplier e.     On a quarterly basis, Supplier will review its actual hourly content required to build the Systems and Customer and Supplier will negotiate a revised price equal to or less than the previous quarter’s price.  The revised price will be based on a fee equal to (1) $[***]   17   per man hour (verification of actual amount to be confirmed after completion of the first control build) plus (2) a burden rate of [***]% of the material cost charged to InVision by its suppliers plus (3) [***]% of the total of (1) and (2). For clarity the current period assembly fees were  calculated as follows for items (1) (2) and (3):   Model CTX 2500 requires [***]-man hours and materials cost of $[***]. Calculation Example: (1) ($[***] x [***]) =   $ [***] plus   (2) ([***] x $[***]) =   $   (3) [***] x ([***] + [***]) =   $               $     Model CTX 5500 requires [***]-man hours and materials cost of $[***]. Calculation Example:   $     $     $               $     f.      In the event that Customer and Supplier can not agree on a fee for a subsequent quarter, then Supplier will continue to perform all Services under this Statement of Work, and Customer will pay a provisional fee in an amount as determined by Customer, and the actual amount of the fee will be determined in accordance with the Dispute Resolution clause 20 of this Agreement.   a.               Inspection - Customer may inspect Services performed by Supplier and/or its subcontractors in progress or completed at any time. b.               Acceptance - Customer will conduct a Final Acceptance Test on each System. Assembly Services shall be deemed accepted upon satisfactory completion of Final Acceptance Test.   4.     Warranty a.               For the Services supplied under this Statement of Work, Supplier warrants that the Services will be performed so as to assure conformance to specifications and drawings, be of first class workmanship and free from defects in workmanship for twelve (12) months from the date of delivery (“Warranty”). b.               If the Services are not supplied as warranted, Supplier will repair the Products, and if repair is not successful, replace the Products. c.               In any event, Customers’ exclusive remedy hereunder is limited to the furnishing of replacement Products on an exchange basis, or, at Supplier’s option, to the repair or replacement of defective Products, but in either case only so long as an examination within the period of warranty reveals the parts to be defective. d.               In addition, and notwithstanding anything herein to the contrary, Supplier shall not incur any obligation hereunder with respect to Services or Products which are modified in any way by Customer or a third party without Supplier’s prior written consent, provided, however, that Supplier shall be deemed to have given prior written consent to Customer’s final integration, test and delivery of the Products.   18   e.               In no event shall Supplier incur any obligation to repair or replace Products which are determined by Supplier, in its sole discretion, to be defective due to Customer or third party misuse, use of unauthorized repair parts or unauthorized third-party service, or because of a use not in accordance with specific Supplier operation and maintenance instructions.   5.     Schedule Supplier shall manufacture and assemble the Systems pursuant to the Customer’s approved MPS.  Customer will provide updated schedules to Supplier from time to time.  Schedule changes made with less than four (4) weeks notice may result in additional charges.   6.     Wind down of Assembly Services a.               Termination for Cause Procedure - Upon termination for cause of the Assembly Services required under this SOW by either party the following shall occur: iv.             Customer will pay Supplier for Assembly Services performed and for all Assembly Services performed in accordance with this SOW and for reasonable and necessary expenses which have accrued to the date of termination less any amounts previously paid. b.               Termination Procedure at End of Agreement Term- Upon termination of this SOW other than for cause the following shall occur: including:   19   c.               Termination for Convenience Procedure- Upon termination of this SOW for the convenience of the TSA, the following shall occur: Termination including:   20   ATTACHMENT 3 COMPONENTS SUPPLIER STATEMENT OF WORK TO AGREEMENT FOR SERVICES   This Statement of Work attached hereto is made a part of that certain Agreement   1.     Terms and Conditions of Sale for Components (Exhibit A to Attachment 3).   21   ATTACHMENT 4 SPARES SUPPLIER STATEMENT OF WORK TO AGREEMENT FOR SERVICES   Intentionally left blank   22   ATTACHMENT 5 NONDISCLOSURE AGREEMENT   THIS AGREEMENT, made effective as of the 8TH day of January, 2002 by and between InVision Technologies, Inc., a Delaware corporation, (hereinafter the “Company”) and CoorsTek  (hereinafter the “Receiving Party”), to assure the protection and preservation of the confidential and proprietary information made available by the Company to the Receiving Party.   WHEREAS, the parties desire to assure the confidential status of the information which may be disclosed by the Company to the Receiving Party;   NOW THEREFORE, in reliance upon and in consideration of the following undertaking, the parties agree as follows:   1.             Subject to the limitations set forth in Paragraph 2, all information disclosed by the Company to the Receiving Party shall be deemed to be “Proprietary Information”. In particular, Proprietary Information shall be deemed to include any information, process, technique, algorithm, program, design, drawing, formula or test data relating to any research project, work in process, future development, engineering, manufacturing, marketing, servicing, financing or personnel matter relating to the Company, its present or future products, sales, suppliers, customers, employees, investors, or business, whether or oral, written, graphic or electronic form.   2.             The term “Proprietary Information” shall not be deemed to include information which the Receiving Party can demonstrate by competent written proof: (i) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known or available; (ii) is known by the Receiving Party at the time of receiving such information as evidenced by its records: (iii) is hereafter furnished to the Receiving Party by a third party, as a matter of right and without restriction on disclosure; or (iv) is the subject of a written permission to disclose provided by the Company.   3.             The Receiving Party shall maintain in trust and confidence and not disclose to any third party or use for any unauthorized purpose any Proprietary Information received from the Company. The Receiving Party may use such Proprietary Information only to the extent  required to accomplish the purposes of this Agreement. The Receiving Party shall not use Proprietary Information for any purpose or in any manner which would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States. No other rights of licenses to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement.   4.             Proprietary Information supplied shall not be reproduced in any form except as required to accomplish the intent of this Agreement.   23   5.             The Receiving Party represents and warrants that it shall protect the Proprietary Information received with at least the same degree of care used to protect its own Proprietary Information from unauthorized use or disclosure. The Receiving Party shall advise its employees or agents who might have access to such Proprietary Information of the confidential nature thereof and shall obtain from each of such employees and agents an agreement to abide by the terms of this Agreement. The Receiving Party shall not disclose any Proprietary Information to any officer, employee or agent who does not have a need for such information.   6.             All Proprietary Information (including all copies thereof) shall remain the property of the Company, and shall be returned to the Company after Receiving Party’s need for it has expired, or upon request of the Company, and in any event, upon completion or termination of this Agreement.   7.             Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information shall not be precluded if such disclosure:   (a)  is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided, however, that the responding party shall first have given notice to the other party hereto and shall have made a reasonable effort to obtain a protective order requiring that the Proprietary Information so disclosed be used only for the purpose for which the order was issued;   (b)  is otherwise required by law; or   (c)  is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.   8.             This Agreement shall continue in full force and effect for so long as the Receiving Party continues to receive Proprietary Information. This Agreement may be terminated at any time upon thirty (30) days written notice to the other party. The termination of the Agreement shall not relieve the Receiving Party of the obligations imposed by Paragraphs 3, 4, 5 and 12 of this Agreement with respect to Proprietary Information disclosed prior to the effective date of such termination and the provisions of these Paragraphs shall survive the termination of this Agreement for a period of five (5) years from   9.             The Receiving Party agrees to indemnify the Company for any loss or damage suffered as a result of any, breach by the Receiving Party of the terms of this Agreement, including any reasonable fees incurred by the Company in the collection of such indemnity.   10.          This Agreement shall be governed by the laws of the State of California as those laws are applied to contracts entered into and to be performed entirely in California by California residents.   11.          This Agreement contains the final, complete and exclusive agreement of the parties relative to the subject matter hereof and may not be changed, modified, amended or supplemented except by a written instrument signed by both parties.   24   12.          Each party hereby acknowledges and agrees that in the event of any breach of this Agreement by the Receiving Party, including, without limitation, an actual or threatened disclosure of Proprietary Information without the prior express written consent of the Company, the Company will suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, each party hereby agrees that the Company shall be entitled to specific performance of the Receiving Party’s obligations under this Agreement, as well as such further injunctive relief as may be granted by a court of competent jurisdiction.   AGREED TO: AGREED TO:         InVision Technologies CoorsTek 7151 Gateway Blvd. 16000 Table Mountain Pkwy. Newark, CA  94560 Golden, CO.     By: /s/ ERIC HURST   By: /s/ JOHN GHINAZNI     Name: ERIC HURST   Name: John Ghinazni     Title: Program Manager   Title: Director   25   ATTACHMENT 6 BUSINESS STRUCTURE AND MATERIALS MANAGEMENT OVERVIEW           26   ATTACHMENT 7 CTX 9000 INFEED AND OUTFEED ASSEMBLY STATEMENT OF WORK TO AGREEMENT FOR SERVICES   1.     This Statement of Work is attached to and made a part of that certain Agreement for Services (“Agreement”), by and between CoorsTek, Inc., (“Supplier”) and InVision Technologies (“Customer”).   2.     Services Description a.               Overall: Supplier shall implement instructions from Customer to carry out the Assembly of the Infeed (PN600396-1) and the Outfeed (PN600397-1) sections of the CTX9000 including all necessary labor, facilities and infrastructure required to perform the Assembly.     c.               In-process Rework (to meet product specification or based on   3.     Fee NRE charges for approval prior to initiating order.  Customer shall reimburse Supplier’s NRE not to exceed $[***].  NRE is intended to cover set-up expenses including electrical accommodations, assembly fixtures, and suspension upgrade on delivery vehicle to ensure undamaged delivery. b.               Customer expects to see declining costs associated with assembly of the Systems over time based on the high volumes and expected learning curve. c.               On a quarterly basis, Supplier will review its actual hourly content required to build the Systems and Customer and Supplier will negotiate a revised price for the upcoming quarter.  The revised price will be based on a fee equal to (1) $[***] per man hour (verification of actual amount to be confirmed after completion of the first control build) plus (2) a burden rate of [***]% of the total material cost charged to InVision by its suppliers plus (3) [***]% of the total of (1) and (2). For clarity the initial period assembly fees were calculated as follows for items (1) (2) and (3):   Combined Infeed/Outfeed Assembly requires [***]-man hours and materials cost of $[***]. Calculation Example:   $     $     $               $     d.     In the event that Customer and Supplier can not agree on a fee for a   27   4.     Inspection and Acceptance a.               Inspection – Customer may inspect Services performed by Supplier and / or its subcontractors in progress or completed at any reasonable time.   b.               Acceptance shall be deemed to occur at the point at which the unit is delivered to the integration site.   5.     Warranty   6.     Schedule a.               Supplier shall manufacture and assemble the Systems pursuant to the Customer’s approved MPS.  Customer will provide updated schedules to Supplier from time to time.  Schedule changes made with less than four (4) weeks notice may result in additional charges.   7.     Wind down of Assembly Services shall occur: reasonable and necessary   28   expenses which have accrued to the date of termination less any amounts previously paid.   including:   Termination including: and necessary   29   expenses which have accrued to the date of termination, less any amounts previously paid, plus any costs incurred by Supplier’s in implementation of the transition plan.   ***Confidential treatment requested.   30

EXHIBIT AMENDMENT TO SECURITY AGREEMENT THIS AMENDMENT TO SECURITY AGREEMENT ("Amendment") is made as of this 6th day of February, 2008, by and between CMARK INTERNATIONAL, INC. (f/k/a Commercial Marketing Corporation and Commercial Marketing Corp.), a South Carolina corporation (the "Borrower") and STERLING MANAGEMENT GROUP, INC. (f/k/a Sterling Management, LLC or Sterling Management, Inc.), a Minnesota corporation (the "Secured Party"). RECITALS: WHEREAS, the Secured Party and the Borrower are parties to that certain Promissory Note dated as of August 25, 2005 under which the Secured Party agreed to extend a loan to Borrower in the original principal amount of $750,000 (the "Note"); and WHEREAS, as a condition precedent to the Note, Secured Party required Borrower to execute and deliver to Secured Party that certain Security Agreement made effective as of August 25, 2005 (the "Security Agreement"); and WHEREAS, Borrower and Secured Party desire to amend the Security Agreement, subject to the terms and conditions set forth below. NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Section

EXHIBIT 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report on Form 10-K (the “Report”) of Oilsands Quest Inc. (the “Company”) for the period ended April 30, 2009, the undersigned Christopher H. Hopkins, the Chief Executive Officer of the Company, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of the undersigned’s knowledge and belief: the Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. July 29, 2009 /s/Christopher H. Hopkins Christopher H. Hopkins, Chief Executive Officer

Exhibit 10.1       REDEVELOPMENT AGREEMENT     by and between   NEW JERSEY SPORTS AND EXPOSITION AUTHORITY   and   MEADOWLANDS MILLS/MACK-CALI LIMITED PARTNERSHIP       DEVELOPMENT AND CONSTRUCTION OF A MIXED-USE REDEVELOPMENT PROJECT   at   THE MEADOWLANDS SPORTS COMPLEX       December 3, 2003.       THIS DRAFT AGREEMENT, THE EXHIBITS AND SCHEDULES HERETO ARE STRICTLY CONFIDENTIAL AND ARE FOR THE USE OF THE INTENDED RECIPIENTS ONLY.  THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES APPENDED HERETO SHOULD NOT BE FURTHER REPRODUCED, DUPLICATED OR DISSEMINATED BY ANY MEANS WHATSOEVER.     TABLE OF CONTENTS   Recitals         Article 1 Definitions and Interpretations         Section 1.1 Definitions and Recitals   Section 1.2 Conflict with Project Agreements   Section 1.3 Drafting Ambiguities; Interpretation         Article 2 Appointment of Developer         Section 2.1 Appointment of Developer; No Warranty         Article 3 Project         Section 3.1 Project Development   Section 3.2 Project Phasing   Section 3.3 Traffic and Infrastructure Improvements   Section 3.4 Rail Access   Section 3.5 Wetlands   Section 3.6 Additional Developer Commitments   Section 3.7 Developer Interference; Authority Interference; Compliance with Existing Sports Complex Agreements         Article 4 The Project Site         Section 4.1 Project Site   Section 4.2 Title Review; Permitted Exceptions   Section 4.3 Title Insurance         Article 5 Payments and Financial Obligations         Section 5.1 Developer’s Financial Obligations   Section 5.2 Development Rights Fee; Refundable Security Deposit; Ground Rent   Section 5.3 PILOT Payments   Section 5.4 Authority’s Profit Participation       Article 6 Pre-Development Activities; Master Plan         Section 6.1 Surveys   Section 6.2 Procedures Governing Review and Approval of Master Plan   Section 6.3 Effect of Authority Approval   Section 6.4 Developer Due Diligence   Section 6.5 No Liens         Article 7 Project Approvals         Section 7.1 Development Approvals   Section 7.2 NJDEP/NJMC Consultation         Article 8 Ground Lease Closing; Material Conditions         Section 8.1 Development Covenant   Section 8.2 Satisfaction of Material Conditions; Termination   Section 8.3 Limited Extension of Material Conditions Termination Date   Section 8.4 Limited Waiver of Material Conditions   Section 8.5 Access to the Project Site         Article 9 Ground Lease; Component Leases         Section 9.1 Execution of Ground Lease   Section 9.2 Conditions Precedent to Ground Lease Closing   Section 9.3 Ground Lease Closing   Section 9.4 Component Parts; Component Entities; Component Leases; Component Agreements   Section 9.5 Certificate of Completion         Article 10 Continental Airlines Arena; Meadowlands Racetrack         Section 10.1 Use of Arena; Use of Meadowlands Racetrack   Section 10.2 Right of First Refusal   Section 10.3 Interference       Article 11 Construction of Project         Section 11.1 Construction Management Agreement   Section 11.2 Project Professionals; Plans and Specifications   Section 11.3 Authority’s Construction Representative   Section 11.4 Designated Representatives; Communication   Section 11.5 Review of Plans and Specifications   Section 11.6 Timing of Review   Section 11.7 Notice of Commencement of Construction   Section 11.8 Compliance with Master Plan and Development Approvals   Section 11.9 Shared Utilities; Stormwater Management   Section 11.10 Construction Interference   Section 11.11 Compliance with Sports Complex Commitments   Section 11.12 Office         Article 12 Project Oversight         Section 12.1 Project Oversight Prior to Completion   Section 12.2 Construction Approval   Section 12.3 Progress Meetings   Section 12.4 Progress Reports   Section 12.5 Access to Project Site   Section 12.6 Community Relations; Stakeholders Advisory Group   Section 12.7 Agreement to Cooperate; Authority’s Event Rights; Operating Plan; Security         Article 13 Uses, Use Restrictions; Tenancy and Operator Requirements         Section 13.1 Permitted Uses; General Covenants   Section 13.2 Tenants and Operators   Section 13.3 Litigation   Section 13.4 Sunday Closing Law Compliance   Section 13.5 Declaration of Covenants and Restrictions   Section 13.6 Mutual Use Recognition         Article 14 Transfer Restrictions         Section 14.1 Transfers Prohibited   Section 14.2 Permitted Transfers   Section 14.3 Involuntary Transfers; Bankruptcy   Section 14.4 Transfers for Which Authority Approval Required       Article 15 Environmental Matters         Section 15.1 Acknowledgements; Allocation of Responsibility; Waiver   Section 15.2 Developer Initiated Data   Section 15.3 Developer’s Remediation   Section 15.4 Historic Fill Material   Section 15.5 Environmental Insurance   Section 15.6 No Third Party Rights   Section 15.7 Effect on Indemnities   Section 15.8 Survival   Section 15.9 Environmental Representations and Warranties by the Authority         Article 16 Representations and Warranties         Section 16.1 Representations and Warranties by Developer   Section 16.2 Representations and Warranties by Authority   Section 16.3 Indemnification   Section 16.4 Incorporation into Agreements         Article 17 Insurance; Indemnification         Section 17.1 Developer Insurance   Section 17.2 Developer Insurance Obligations During the Pre-Construction Period   Section 17.3 Developer’s Insurance Obligations During the Construction Period   Section 17.4 Developer’s Insurance Obligations During Post-Construction Period   Section 17.5 Authority Insurance   Section 17.6 Developer Indemnification   Section 17.7 Authority Indemnification         Article 18 Events of Default and Remedies         Section 18.1 Events of Default by Developer   Section 18.2 Events of Default by Authority   Section 18.3 Force Majeure Events   Section 18.4 Limited Remedies of Authority Upon Developer Event of Default   Section 18.5 Limited Remedies of Developer Upon Authority Event of Default   Section 18.6 Limitation on Damages   Section 18.7 Failure or Delay   Section 18.8 Remedies Cumulative       Article 19 Minority Participation; Non-Discrimination; Disclosures         Section 19.1 Developer Affirmative Action Obligations   Section 19.2 Non-Discrimination   Section 19.3 Prevailing Wages   Section 19.4 Additional Disclosures         Article 20 Publicity; Promotional Materials; Project Marketing Plans; Signage         Section 20.1 Publicity; Promotional Materials   Section 20.2 Signage, Advertising and Marketing Rights   Section 20.3 Intellectual Property         Article 21 Arbitration         Section 21.1 Scope   Section 21.2 Arbitration Procedures   Section 21.3 Fees and Costs   Section 21.4 Confidentiality         Article 22 Miscellaneous         Section 22.1 Cooperation, Assurance, Estoppel Agreements, etc.   Section 22.2 Invalidity   Section 22.3 Legal Requirements; Venue   Section 22.4 Notices   Section 22.5 Notice Address   Section 22.6 Calculation of Time   Section 22.7 Expenses   Section 22.8 Waivers; Extensions   Section 22.9 Counterparts; Captions; Context   Section 22.10 Entire Agreement, Modifications   Section 22.11 Binding Effect   Section 22.12 No Joint Venture   Section 22.13 Time of the Essence   Section 22.14 Negation of Third-Party Beneficiaries       REDEVELOPMENT AGREEMENT   THIS REDEVELOPMENT AGREEMENT is made as of the 3rd day of December, 2003 (this “Agreement”), by and between the NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, a public body corporate and politic with corporate succession and having an address at Meadowlands Sports Complex, 50 State Route 120, East Rutherford, New Jersey 07073 (the “Authority”), and MEADOWLANDS MILLS/MACK-CALI LIMITED PARTNERSHIP, a Delaware limited partnership, having an address at c/o The Mills Corporation, 1300 Wilson Boulevard, Suite 400, Arlington, Virginia 22209, and its permitted successors and assigns (the “Developer”).  The Developer and the Authority are referred to herein individually as a “Party” and collectively as the “Parties”.     WHEREAS, the Legislature of the State of New Jersey has found that the holding of athletic contests, horse racing, spectator sporting events, trade shows, entertainment events and other expositions and forums will promote the general health and welfare of the people of New Jersey; and   WHEREAS, pursuant to Public Law 1971, Chapter 137 (codified at N.J.S.A. 5:10-1 et seq., and as thereafter amended and modified, the “Enabling Legislation”) the Legislature of the State of New Jersey established the Authority to, inter alia, promote athletic contests, spectator sporting events, trade shows and other expositions and to carry out projects as set forth in the Enabling Legislation; and   WHEREAS, the Authority owns certain real property consisting of approximately 750 acres in the Borough of East Rutherford, New Jersey, commonly known as “The Meadowlands Sports Complex” or “The Meadowlands” (as more particularly described in Exhibit A-1 attached hereto) on which the Authority has constructed, inter alia, an enclosed sports arena and associated surface parking lots, walks and driveways (currently known as the Continental Airlines Arena and formerly known as the Brendan Byrne Arena, and hereinafter referred to as the “Arena”), Giants Stadium, and the Meadowlands Racetrack, such real property and improvements being collectively referred to herein as the “Meadowlands Complex” or the “Sports Complex”); and   WHEREAS, in furtherance of its mission under Section 5:10-6 of the Enabling Legislation, and in the exercise of its statutory powers, the Authority has determined that it is necessary to improve the Meadowlands Complex with a project including, but not limited to, an entertainment complex, retail and other vending facilities, restaurants, recreation areas, hotel, offices and other buildings, structures, facilities, properties and appurtenances that are related to, incidental to, necessary for or complementary to the purposes of such project and overall to the Meadowlands Complex, as hereinabove defined; and   1   WHEREAS, pursuant to that goal, in June 2002, the Authority publicly circulated a request for proposals (the “RFP”) seeking a developer to construct, manage and otherwise effectuate, in conjunction with the Authority, the foregoing facilities subject to the provisions of the Enabling Legislation, other applicable laws and regulations and a redevelopment agreement to be entered into between the Authority and the selected developer; and   WHEREAS, several entities and interested parties submitted development proposals in response to the RFP (each, a “Response”); and   WHEREAS, all Responses and supplements thereto were thoroughly reviewed by the Authority and, on the basis of the Developer’s Response, the Authority’s evaluation thereof and additional public query and comment, the Authority’s Board of Commissioners, by resolution duly adopted February 12, 2003, has determined that the Authority should enter into exclusive negotiations with the Developer for development of the real property located within the Meadowlands Complex (adjacent to but excluding the Arena and the Arena Site, as such terms are defined in Schedule 1.1 hereto), consisting of approximately 100 acres and as more particularly described in Exhibit “A” attached hereto (the “Project Site”); and   WHEREAS, the Authority has concluded the above-referenced negotiations and is entering into this Agreement with the Developer as the master developer for a mixed-use project consisting of buildings and structures comprising a total of approximately 5,000,000 square feet of gross leaseable area (“GLA”) which project includes the following components, entitlements and rights (each a “Component” or “Project Component” and collectively, the “Project”): (a) approximately 12,500 parking spaces located on the Project Site or within the Project buildings or Components (as further defined on Schedule 1.1 hereof, the “Parking Component”); (b) approximately 2,200,000 square feet of GLA of entertainment, recreation, retail and other vending facilities, dining facilities and other facilities vending food or beverage, together with such other facilities, whether vending or otherwise, related to, necessary for, incidental to and/or complementary to the activities and purposes of the Project and overall to the Meadowlands Complex and activities carried out by the Authority and/or by the Sports Complex Users on the Meadowlands Complex together with a fashion area of retail, not specifically oriented to entertainment or recreation, of approximately 600,000 square feet of GLA, and also including approximately 500,000 square feet of common area which, together with the above-described 2,200,000 square feet of GLA comprising approximately 2,700,000 square feet (the “Entertainment/Retail Component”); (c) approximately 1,760,000 square feet of Class “A” office space, together with ancillary and/or complementary supporting retail and vending space that is related to, necessary for, incidental to and/or complementary to the Class “A” office use and activities and the purposes of the Project and overall to the Meadowlands Complex and activities carried out by the Authority and/or by the Sports Complex Users on the Meadowlands Complex (the “Office Component”); (d) approximately 500,000 square feet of hotel space, together with ancillary and/or complementary supporting retail and vending space that is related to, necessary for, incidental to and/or complementary to the hotel use and activities and purposes of the Project and overall to the Meadowlands Complex and activities carried out by the Authority and/or the Sports Complex Users on the Meadowlands Complex, and including approximately 520 hotel rooms (the “Hotel Component”); (e) certain on- and off-site improvements to the traffic and transportation infrastructure servicing the Project Site, all as further described in this Agreement   2   and as to be described in the Master Plan, and (f) the related rights granted to the Developer under this Agreement and the Project Agreements; it being understood that the configuration of the floor area of the Project (in its entirety) and each of the foregoing Components may be subject to adjustment based upon the Master Plan approval process set forth herein and/or the final Development Approvals issued for or with respect to the Project and as more fully set forth in this Agreement; and   WHEREAS, in selecting the Developer to develop and operate the Project, the Authority has determined that the Developer’s Response to the RFP and the Project (as described above) are consistent with, and satisfy the requirements of, the RFP; and   WHEREAS, the Parties are entering into this Agreement in furtherance of the above public purposes and in order to set forth the terms and conditions governing the design, permitting, construction, operation and maintenance of the Project.   NOW, THEREFORE, in consideration of the promises and mutual obligations of the Parties hereto and such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be legally bound thereby, do hereby covenant and agree with the other as follows:   ARTICLE 1 DEFINITIONS AND INTERPRETATION   SECTION 1.1.  Definitions and Recitals.  Capitalized terms used in this Agreement and its schedules and exhibits shall have the meanings described in the text of this Agreement (or schedules and exhibits, as the case may be) which defined terms may be further refined or described in Schedule 1.1 hereto which when taken together shall comprise the complete defined term.  The Recitals set forth in this Agreement, as well as the definitions contained therein, are hereby incorporated herein as if fully set forth herein.   SECTION 1.2.  Conflict with Project Agreements.  This Agreement and each of the Project Agreements are each intended to address each of the respective matters specifically set forth therein.  Prior to Completion of the Project in its entirety (or Completion of a Component thereof, as the case may be), in the event of any conflict between the terms of this Agreement and the terms of any other Project Agreement, the terms of this Agreement shall control absent an unambiguous intent to the contrary.  Following Completion of the Project in its event of any conflict between the terms of the Ground Lease and the terms of any other Project Agreement, the terms of the Declaration and the Ground Lease (or the applicable Component Lease, as the case may be) shall control absent an unambiguous intent to the contrary.  Nothing in the foregoing shall be interpreted to mean that this Agreement terminates upon completion of the Project or Component thereof and the provisions of this Agreement are, unless otherwise expressly provided to the contrary herein, intended to remain in effect following completion of the Project or Component thereof, as the case may be.   3   SECTION 1.3.  Drafting Ambiguities; Interpretation.  In interpreting any provision of this Agreement, no weight shall be given to, nor shall any construction or interpretation be influenced by, the fact that counsel for one of the Parties drafted this Agreement, each Party recognizing that it and its counsel have had an opportunity to review this Agreement and have contributed to the final form of same.  Unless otherwise specified (i) whenever the singular number is used in this Agreement, the same shall include the plural, and the plural shall include the singular, (ii) the words “consent” or “approve” or words of similar import, shall mean the prior written consent or approval of the Authority or Developer, as the case may be, unless expressly stated to the contrary herein, (iii) the words “include” and “including”, and words of similar import, shall be deemed to be followed by the words “without limitation”, (iv) “hereunder” shall be deemed to refer to the provisions of this Agreement in their entirety and not to a provision contained within any particular Section, and (v) the Schedules and Exhibits to this Agreement are incorporated herein by reference.   ARTICLE 2 APPOINTMENT OF DEVELOPER   SECTION 2.1.  Appointment of Developer; No Warranty.  (a) Appointment; Acceptance.  The Authority hereby appoints the Developer as the master developer of the Project, and Developer hereby accepts such appointment upon and subject to the terms and conditions set forth in this Agreement.  Developer shall (i) act as the master developer for the Project and shall cause the Project to be designed, permitted and constructed materially in accordance with the requirements of this Agreement, the Master Plan and the Development Approvals, (ii) cause the Project to be operated and maintained in accordance with the terms hereof and the provisions of the Ground Lease and, to the extent applicable, Developer may effect such obligations by and through the Project Agreements, including without limitation, any Component Lease(s) and Component Agreements, and (iii) provide (or cause to be provided) all materials, fixtures, furniture, supplies, equipment, all architectural, engineering and consulting services and labor necessary for the design, permitting, and construction of the Project, in all material respects in accordance with this Agreement.  The Authority and the Developer and their respective agents, employees and representatives shall use their respective diligent and commercially reasonable efforts to work collaboratively through the completion of the Project in its entirety, unless this Agreement has been terminated in accordance with its terms.   (b)                                 No Representation or Warranty.  Developer specifically acknowledges that, except as expressly provided herein or in the Project Agreements, the Authority makes no representation or warranty, expressed or implied, as to the Project’s or the Project Site’s fitness for use for any particular purpose, condition or durability thereof, or that it will be suitable for Developer’s purposes; provided however, that the Parties acknowledge and agree that the Developer has entered into this Agreement in reliance upon the Authority’s representations as set forth in Section 16.2 hereof.   (c)                                  Independent Contractor; Financial Responsibility.  Developer is an independent contractor and is not, and shall not be deemed to be, an agent of the Authority.  Developer has no authority to make commitments on behalf of, or to legally bind, the Authority.  All contracts relating to the design, permitting and initial construction of the Project and, to the   4   extent applicable, the Traffic and Infrastructure Improvements, shall be entered into by Developer (or a Component Entity, to the extent applicable) and not the Authority, and Developer shall (except to the extent expressly provided to the contrary in this Agreement, including specifically and without limitation, (i) Section 3.3(d) hereof with respect to payment of the costs relating to Final Traffic and Infrastructure Improvements that exceed the Traffic and Infrastructure Cap Amount, (ii) Section 15.3(f) hereof with respect to payment of the Authority’s Environmental Remediation Contribution, and (iii) with respect to any agreement or obligation under the Enabling Legislation, the of any PILOT Payments) be financially responsible for payment of all fees and contract sums due under such contracts (unless the Authority or other Governmental Body has assumed, in whole or in part, the obligation to perform under such contract).   ARTICLE 3 PROJECT   SECTION 3.1.  Project Development.  Pursuant to the terms of this Agreement and the Project Agreements, the Developer shall, as master developer, have the exclusive right to design, permit and construct and operate the Entertainment/Retail Component of the Project and that portion of Parking Component related thereto, and to master develop, on a phased basis, the balance of the Project, all in conformance with the Master Plan.  In addition to the foregoing, the Traffic and Infrastructure Improvements may be constructed by the Developer on a phased basis in accordance with the Traffic and Infrastructure Sequencing Plan and Development Approvals.   SECTION 3.2  Project Phasing.  (a) The Project will consist of the following phases, consisting of the applicable buildings, structures, equipment, fixtures, appurtenances and other on-site and off-site improvements and facilities (each a “Phase”), each of which (to the extent permitted by the applicable Development Approvals) is projected to be constructed in the below-listed order:   (i)                                     Phase I – (A) Fill undeveloped wetland areas, as required, for the Project, subject to the Development Approvals, (B) that portion of the Parking Component comprised of approximately 1,675 spaces, (C) the applicable Traffic and Infrastructure Improvements (including the applicable relocation of existing utilities) described on Exhibit “C-1” hereto, and (D) establishment of Project Contractor staging areas.   (ii)                                  Phase II – (A) the Entertainment/Retail Component, (B) that portion of the Parking Component comprised of approximately 6,325 spaces, (C) the applicable Traffic and Infrastructure Improvements described on Exhibit “C-2” hereto and (D) assuming favorable economic and marketing conditions, a minor league baseball stadium of approximately 8,000 seats (the “Baseball Stadium”).  Subject to the terms hereof, a Baseball Stadium may be built as part of Phase II or a subsequent Phase in which event it shall become part of the Project.   (iii)                               Phase III – Assuming favorable economic and market conditions, (A) the Hotel Component or portion thereof, and/or (B) that portion of the Office Component designated as Office Building “A”, and (C) the accessory parking related to the Hotel   5   Component (or portion thereof) and/or the Office Building “A” portion of the Office Component, and (D) the applicable Traffic and Infrastructure Improvements described on Exhibit C-3 hereto.   (iv)                              Phase IV – Assuming favorable economic and market conditions, (A) all or any portion of the Hotel Component not Completed as part of Phase III (and Office Building “A”, if not Completed in Phase III) and the accessory parking related thereto and/or those portions of the Office Component designated as office building “B”, “C” and/or “D”, (B) the accessory parking related to the office buildings “B”, “C” and/or “D”, as the case may be, and (C) the applicable Traffic and Infrastructure Improvements described on Exhibit “C-4” hereto.  Upon prior written notice to the Authority as more fully set forth elsewhere herein, Developer shall have the right to develop the Components or Component Parts constituting Phase III and/or IV in multiple sub-phases based on market conditions.   Notwithstanding the foregoing, with the exception of Phases I and II, which shall be constructed first (excluding the Baseball Stadium), the sequencing of construction and the dates on which each Component of the Project (or Phase thereof) shall be constructed shall be determined by the Developer in the exercise of its business judgment, taking into account all relevant factors (after reasonable consultation with the Authority if materially different than the Preliminary Project Sequencing Plan or the Final Project Sequencing Plan, as the case may be) and, in any case, in accordance with the Construction Management Agreement and/or the Project Operating Agreement then in effect.  Subject to the restrictions set forth in the Project Agreements, nothing herein is intended to preclude or limit the right or power of the Developer to undertake work on multiple Phases concurrently or require that any one Phase be Completed prior to the commencement of work on a different Phase.  Nothing herein shall require the Authority to expend any actual out-of-pocket costs or incur any liabilities, except as hereinafter otherwise provided or in the Project Agreements, of any kind or nature to facilitate the development, construction or operation of the Project or any Component thereof in accordance with any particular Project Schedule now or hereafter proposed by Developer or using any particular construction methods.   (b)                                 Preliminary and Final Project Sequencing Plan.  The preliminary plan for the sequencing of construction of the Project and the projected dates on which certain Components of the Project, or Phase thereof, may be constructed are set forth in the description attached hereto as Exhibits “C-1” through “C-4”, inclusive and Exhibit “E” (collectively, the “Preliminary Project Sequencing Plan”).  However, the Parties acknowledge that as of the date hereof, the sequencing of construction of the Project Components also depends upon resolution of certain technical matters and market considerations that are not capable of conclusive determination at this time.  As such, an updated construction sequencing plan of the Project Components will be prepared by the Developer from time-to-time to reflect the changes made since the Preliminary Project Sequencing Plan which changes may be made to reflect then current market considerations, to be finalized and submitted to the Authority for review as part of Item No. 5 of the Master Plan requirements described in Section 6.2(c)(i)(5) hereof (the “Final Project Sequencing Plan”).   (c)                                  Preliminary and Final Traffic and Infrastructure Sequencing Plan. A preliminary plan for the sequencing of construction of the Traffic and Infrastructure   6   Improvements is set forth in the description attached hereto as Exhibit “C-6” (collectively, the “Preliminary Traffic and Infrastructure Sequencing Plan”).  However, the Parties acknowledge that as of the date hereof, the sequencing of construction of the Traffic and Infrastructure Improvements, although based upon the sequencing of construction of the Project Components (or Phases thereof), depends upon the resolution of certain technical matters that are not capable of conclusive determination at this time.  As such, an updated construction sequencing plan of the Traffic and Infrastructure Improvements will be prepared by the Developer from time to time to reflect the changes made since the Preliminary Traffic and Infrastructure Sequencing Plan, to be finalized and submitted to the Authority for review as part of Item No. 5 of the Master Plan requirements described in Section 6.2(c)(i)(5) hereof (the “Final Traffic and Infrastructure Sequencing Plan”).   (d)                                 Non-Interference.  Developer shall use commercially reasonable efforts to minimize the creation of Developer Interference and Authority Interference in designing the Preliminary and Final Project Sequencing Plans and the Preliminary and Final Traffic and Infrastructure Sequencing Plans.   (e)                                  Modifications to Sequencing Plans.  With the exception of Phase I and Phase II, following Approval of the Master Plan, the Developer shall be permitted to modify the Final Project Sequencing Plan and/or the Final Traffic and Infrastructure Sequencing Plan from time-to-time, as it reasonably determines consistent with customary commercial construction practices and then current market conditions and in accordance with the balance of this Section 3.2(e).  The Developer shall provide prompt written notice to the Authority of such changes.  Any such modifications to the Final Project Sequencing Plan and/or the Final Traffic and Infrastructure Sequencing Plan shall not limit, reduce or otherwise modify the Parties’ respective rights or obligations under this Agreement in any material respect.   SECTION 3.3.  Traffic and Infrastructure Improvements.  (a) As of the Effective Date, the Developer has identified the Traffic and Infrastructure Improvements described on Exhibit “C-5” as being required to support construction and operation of the Project (the “Preliminary Traffic and Infrastructure Improvements”).  Such Preliminary Traffic and Infrastructure Improvements include, without limitation, on-site and off-site improvements, utility relocations and roadway relocation consistent with the Preliminary Traffic and Infrastructure Sequencing Plan.  The Authority and the Developer acknowledge and agree that the Preliminary Traffic and Infrastructure Improvements shall be subject to review and approval by Governmental Bodies as part of the process of acquiring the Development Approvals and, as such, the Preliminary Traffic and Infrastructure Improvements described on Exhibit “C-5” hereto may be materially and substantially revised; provided however, any such modification shall not be deemed to require the Developer to expend in excess of the Traffic and Infrastructure Cap Amount set forth in Section 3.3(d) hereof unless Developer shall have elected to do so pursuant to Section 8.2(b)(xi) hereof.  A revised plan for construction of the Traffic and Infrastructure Improvements will be prepared by the Developer to reflect the proposed changes made to the Preliminary Traffic and Infrastructure Improvements (the improvements reflected in the final plan are hereinafter referred to as the “Final Traffic and Infrastructure Improvements”).  The Developer shall provide prompt written notice to the Authority of any revision to the Preliminary Traffic and Infrastructure Improvements and furnish the Authority with copies of all interim   7   drawings promptly following completion.  Concurrent with the preparation and submittal of final Development Approval Documents relating to the Traffic and Infrastructure Improvements, the Parties shall endeavor in good faith to agree upon a revision to Exhibit C-5 to reflect the Final Traffic and Infrastructure Improvements and such revision shall include the Developer’s estimated budget to permit, design and construct such Final Traffic and Infrastructure Improvements, subject to the limitations in Section 3.3(b), (c) and (d) hereof.  From and after the date of such revision and acceptance or Approval by the Authority, as the case may be, pursuant to the terms hereof, to the extent required by Section 6.2 hereof, such revised Exhibit “C-5” and the Development Approvals shall define the scope of the Developer’s obligations with respect to such Final Traffic and Infrastructure Improvements.  Such written plan shall be promptly prepared by the Developer and submitted to the Authority for review as part of Item No. 6 of the Master Plan requirements described in Section 6.2(c)(i)(6) hereof.   (b)                                 Developer Responsibilities; Cooperation by Authority.  In order to provide for construction of the Final Traffic and Infrastructure Improvements at the lowest practicable cost and in the most efficient manner (in light of, among other things, economies that result from integration of construction of the Final Traffic and Infrastructure Improvements with construction of other Project Components), to the maximum extent practicable consistent with Legal Requirements, construction of the Final Traffic and Infrastructure Improvements shall be undertaken and/or overseen/managed by the Developer.  The Developer shall be responsible for the costs relating to the permitting, design and construction of the Final Traffic and Infrastructure Improvements (whether or not such Improvements are constructed by the Developer); provided however, that (i) the Developer’s obligations to pay such costs shall be subject to the provisions of Section 3.3(d) hereof and shall not exceed the Traffic and Infrastructure Cap Amount (unless Developer so elects as provided in Section 8.2(b)(xi) hereof, and (ii) Developer shall not be obligated for any increase in cost caused by an Authority Event of Default or the action or omission of the Authority in contravention of the terms of this Agreement and/or the Construction Management Agreement.  The Authority shall cooperate with the Developer at no out-of-pocket, third-party cost to the Authority in obtaining the agreement or approval from Governmental Bodies having competent jurisdiction over construction of the Final Traffic and Infrastructure Improvements to permit the Developer to design and promptly construct the Final Traffic and Infrastructure Improvements.   (c)                                  Construction.  The Final Traffic and Infrastructure Improvements shall be constructed substantially in accordance with the Final Traffic and Infrastructure Sequencing Plan, it being expressly understood that none of the Components comprising Phase I nor Phase II of the Project shall be deemed to be eligible for the delivery of a Certificate of Completion by the Authority pursuant to the terms hereof unless the Final Traffic and Infrastructure Improvements applicable to such Phases have been substantially completed, in each case, in conformance with the Development Approvals and the Final Traffic and Infrastructure Sequencing Plan.  Notwithstanding the foregoing, the Developer (in the exercise of its reasonable discretion and, to the extent permitted by the Development Approvals), may elect to construct the portions of the Final Traffic and Infrastructure Improvements relating to the Office Component and/or the Hotel Component as part of Phase III and/or Phase IV, as applicable, rather than as part of Phase I and Phase II.   8   (d)                                 Traffic and Infrastructure Cost Allocation.  (i) The Parties acknowledge and agree that, subject to the occurrence of the Ground Lease Closing, Sixty-Five Million Dollars ($65,000,000) (the “Traffic and Infrastructure Cap Amount”) has been committed by the Developer for application to payment of the customary and reasonable hard and soft costs associated with and incurred in connection with the Final Traffic and Infrastructure Improvements (including specifically and without limitation costs of design and permit application, construction costs, financing costs, review fees, construction management and similar or related development fees, to the extent that the foregoing are reasonable and customary for projects of the size and scope of the Project).  The aggregate of all such costs actually expended shall be hereinafter referred to as the “Actual Traffic and Infrastructure Costs”.  In the event that the Actual Traffic and Infrastructure Costs are greater than Sixty-Five Million Dollars ($65,000,000), the Developer shall provide written certification thereof to the Authority no later than ninety (90) days following the earlier to occur of (i) the date reasonably estimated by Developer upon which substantial completion of the Final Traffic and Infrastructure Improvements in their entirety shall occur, or (ii) funding and actual payment by the Developer of Sixty-Five Million Dollars ($65,000,000) for such costs, subject to the provisions of Section 8.2(b)(xi).  Upon receipt of the certification of the Developer as provided hereinabove, the Authority shall pay to Developer the Authority Traffic and Infrastructure Payment Amount as determined pursuant to Section 8.2(b)(xi) hereof (or such amount in excess thereof that may have been agreed to pursuant to Section 8.2(b)(xi) hereof).  Notwithstanding anything herein (including, but not limited to, this Section 3.3 and Section 8.2(b)(xi)) to the contrary, the Authority Traffic and Infrastructure Amount (as defined in Section 8.2(b)(xi)) shall be limited to a maximum aggregate payment of Three Million Two Hundred Fifty Thousand Dollars ($3,250,000).   (ii)                                  In the event that the Authority is obligated to pay the Authority Traffic and Infrastructure Payment Amount as provided herein, and such payment is not made by the Authority (or by the applicable Governmental Body responsible for such payment) within one hundred twenty (120) days of presentment of Developer’s written certification, as required, the Developer may offset the amount of such payment (together with interest thereon from the date such payment was due until fully paid at the Overdue Rate, plus the costs of collection, including without limitation, reasonable attorneys fees) against any payments then due and payable or to be paid by the Developer during the term of this Agreement, the Ground Lease or by a Component Entity under any Component Lease (including specifically and without limitation, the Ground Rent and/or the Developer PILOT Payments).  The foregoing right of the Developer to offset such payments shall not be deemed to constitute a waiver of any rights that the Developer may have at law or in equity to enforce the Authority’s obligation to pay the Authority Traffic and Infrastructure Payment Amount.   (iii)                               In the event that the Actual Traffic and Infrastructure Costs are less than the Traffic and Infrastructure Cap Amount, as evidenced by the aforementioned Developer’s certification, the Developer shall pay to the Authority an amount equal to the difference between the Traffic and Infrastructure Cap Amount, and the Actual Traffic and Infrastructure Costs (the “Unspent Traffic and Infrastructure Amount”).  The Developer shall pay the Unspent Traffic and Infrastructure Amount to the Authority within one hundred twenty (120) days following receipt by the Developer of the Authority’s written notification that the   9   Authority has reviewed and agreed with the Developer’s certification as to the Actual Traffic and Infrastructure Costs.  If the Parties cannot reach agreement as to the Actual Traffic and Infrastructure Improvement Costs, the provisions of Article 21 hereof shall apply and the successful Party shall be entitled to payment of interest on any unpaid amount at the Overdue Rate for the period from the date such amount is payable until the date such amount is paid.  The Unspent Traffic and Infrastructure Amount shall be applied by the Authority FIRST, for payment of the costs of connecting the Entertainment/Retail Component to the rail station to be constructed proximate to the Project Site, and SECOND, to the extent funds remain available, for payment of a portion of the capital cost to be incurred in connection with construction of the infrastructure improvements within the Meadowlands Complex required to bring rail access to the Sports Complex and the Project Site (such costs, the “Rail Access Project Expenditure”; the related project, the “Rail Access Project”).  The Rail Access Project Expenditure shall be subject to the reasonable approval of the Developer.  In the event that the Developer pays the Unspent Traffic and Infrastructure Amount and such funds are not used for the Rail Access Project Expenditure within five (5) years following Completion of the Entertainment/Retail Component, the Authority shall refund any unspent moneys to the Developer plus interest thereon from the date paid to the Authority at the “prime rate” (as such term is defined in Schedule 1.1 in the definition of Overdue Rate).   (e)                                  On-Site/Off-Site Cost Allocation.  Developer expressly acknowledges and agrees that the Traffic and Infrastructure Cap Amount is intended to fund only the Final Traffic and Infrastructure Improvements, and that the portion of the Final Traffic and Infrastructure Improvements relating to on-site improvements shall be limited in scope only to those specific improvements that are (i) needed to support construction and operation of the Project on the Project Site in particular, as opposed to improvements that would be required on development sites generally and (ii) other improvements that are described or contemplated as Preliminary Traffic and Infrastructure Improvements.  By way of example, but not limitation, costs associated with relocation of existing utilities and modifications to utility easements on the Project Site required to accommodate the Project would qualify as a Traffic and Infrastructure Improvement to be funded from the Traffic and Infrastructure Cap Amount.  Similarly, typical costs of installation of customary commercial application underground utilities to service the Project that would customarily be borne by the Developer as part of normal commercial non-site specific development shall not be applied as a deduction against the Traffic and Infrastructure Cap Amount, unless described or contemplated as Preliminary Traffic and Infrastructure Improvements.  Any dispute relating to the estimated budget and scope of work to permit, design and construct the Final Traffic and Infrastructure Improvements may be submitted to arbitration in accordance with Article 21 hereof.   (f)                                    Authority Cooperation.  The Authority shall (at no out-of-pocket third-party expense to the Authority) cooperate with Developer to identify and secure sources of financing for those Traffic and Infrastructure Improvements, including any, that are eligible (under applicable Federal income tax law) to be funded with tax-exempt debt obligations.  If requested by the Developer, the Authority shall (i) issue (on a non-recourse, conduit basis) debt obligations for sale to the public or private capital markets, or make application, together with the Developer to either the New Jersey Economic Development Authority, The Bergen County Improvement Authority or the Borough requesting such entity to issue non-recourse, conduit   10   debt obligations on behalf of the Authority and/or the Developer, (ii) cooperate with the Developer in preparing and distributing any disclosure documentation required for the marketing and sale of such debt obligations, (iii) participate in meetings with credit rating agencies, bond insurance providers, credit enhancement issuers and/or institutional purchasers with respect to the proposed financing, (iv) execute such reasonably required closing or other documents as are necessary in order to effectuate the issuance of such debt obligations, provided however, in giving effect to the foregoing provisions, the Authority shall not (A) be obligated to incur any out-of-pocket expenses, or (B) be required to redeem outstanding Authority indebtedness or take remedial actions under the Internal Revenue Code, as amended, and the regulations, decisions and orders promulgated or issued thereunder, that may be required in order to maintain the exclusions of interest on the Authority’s tax-exempt debt obligations from gross income for Federal income tax purposes or violate any Sports Complex Agreements or existing bond finance documents.  Notwithstanding anything set forth in this Section 3.3(f), the Authority’s agreement to cooperate shall not constitute a representation by the Authority that such sources are available or permitted under Legal Requirements nor that any of the Traffic and Infrastructure Improvements would qualify for such financing.   SECTION 3.4.  Rail Access.  (a) The Parties shall use their good faith, diligent and commercially reasonable efforts, in conjunction with applicable Governmental Bodies, to develop and implement a plan to construct the Rail Access Project.  In the course of developing the Master Plan and obtaining Development Approvals, the Developer shall exercise its diligent and commercially reasonable efforts to consult with the Authority and the Governmental Bodies for the purpose of identifying the various options for the provision and location of rail access to the Project Site.  The Developer shall use commercially reasonable efforts to maintain flexibility within the Master Plan to accommodate multiple options with respect to implementation of the Rail Access Project; provided however, that such obligation shall not be deemed to require the Developer to modify the Project (or any Component thereof or financing related thereto) or accommodate multiple options to the extent that such modification or accommodation would (i) have a Material Adverse Effect on the Project, the Developer, the Master Plan and/or the ability of the Developer or the Authority to satisfy any material obligation required to be performed under this Agreement, the Ground Lease, any Component Lease or Project Indebtedness, or (ii) constitute a Major Modification.  The Developer expressly acknowledges and agrees that the Authority makes no representation or warranty, express or implied, with respect to the future availability of public transportation to the Project Site.   (b)                                 Rail Access Marketing.  In the event that rail access is provided to the Project Site, Developer shall use its commercially reasonable efforts to cause a marketing and publicity program to be initiated to encourage use of the rail system by Project visitors and employees.   (c)                                  No Further Obligation.  Notwithstanding the foregoing, other than application of the Unspent Traffic and Infrastructure Amount, if any, as provided in Section 3.3(d) hereof, the Developer shall not have any obligation to contribute or make payment to the Authority, the State or any Governmental Body with respect to the Rail Access Project.   11   SECTION 3.5.  Wetlands.  (a) Wetlands Mitigation Requirement. The Parties acknowledge and agree that, in order to obtain certain of the Development Approvals, wetlands mitigation may be required.  With respect to any wetlands mitigation that is required, Developer shall, at the sole cost and expense of Developer, carry out same in the manner authorized, required or permitted by applicable Development Approvals.   (b)                                 Establishment of Wetlands Mitigation Bank.  (i) The Parties acknowledge and agree that the Developer intends to seek approval of the Governmental Bodies having competent jurisdiction for establishment of a wetlands mitigation bank on the Empire Tract (the “Wetlands Mitigation Bank”) and execution of any applicable agreements relating thereto, including the MIMAC Agreement (the “WMB Approvals”).   (ii)                                  To the extent reasonably requested by the Developer, and to the extent consistent with Legal Requirements, the Authority shall cooperate with the Developer in its efforts to obtain and effectuate the WMB Approvals, including attendance at meetings with appropriate officials of the federal and/or State government as may be reasonably requested by Developer for such purpose, identification of potential governmental and quasi-governmental purchasers of wetlands mitigation credits from the Wetlands Mitigation Bank, and the Authority shall provide other cooperation, as may be reasonably requested by the Developer.   (c)                                  Conveyance of Empire Tract.  (i) Developer shall convey or cause to be conveyed insurable title to the Empire Tract on the Ground Lease Closing Date to an entity designated by the Authority or NJDEP.  In the event that any WMB Approval prohibits transfer of the Empire Tract prior to completion of mitigation banking activities, then the Developer shall convey insurable title to the Empire Tract after completion of such activities.   (ii)                                  The conveyance of the Empire Tract shall be subject to a reservation of Developer’s rights to (A) establish the Wetlands Mitigation Bank on the Empire Tract, (B) enter upon, occupy and make use of the Empire Tract for purposes of restoring the Empire Tract for use as a Wetlands Mitigation Bank, and (C) enter upon, occupy and use the Empire Tract for purposes of operating and maintaining the Wetlands Mitigation Bank for its intended purpose, in accordance with the WMB Approvals.  Such reservation shall be recorded with the Bergen County Clerk and thereafter shall encumber and run with the land comprising the Empire Tract.   (iii)                               In the event the Ground Lease Closing does not occur and this Agreement is terminated, Developer shall have no obligation to convey or cause to be conveyed the Empire Tract and thereafter, the Developer shall have no further obligations hereunder with respect to the Empire Tract, and the Authority and the entity previously designated to own the Empire Tract shall not have any further rights in, to or otherwise in connection with the Empire Tract.   (d)                                 Restoration of Empire Tract.  If the Wetlands Mitigation Bank has been established pursuant to Section 3.5(b) hereof, then the Developer shall promptly undertake (at its sole cost and expense) restoration of the Empire Tract in accordance with the WMB Approvals for those areas of the Empire Tract where agreements have been reached with third parties for   12   the purchase of credits from the Wetlands Mitigation Bank.  The Developer anticipates spending up to approximately Twenty-Five Million Dollars ($25,000,000) (the “Estimated Wetlands Restoration Amount”) with respect to restoration of the Empire Tract, inclusive of the tasks set forth on Exhibit G hereto.  The Estimated Wetlands Restoration Amount (and the tasks set forth on Exhibit G hereto) shall be subject to revision based upon, among other things, the terms and conditions of the WMB Approvals (in accordance with the review process set forth in this Agreement for modification of the Master Plan) to give effect to the terms and conditions of the final, non-appealable WMB Approvals.  Expenditures in excess of the Estimated Wetlands Restoration Amount shall be made in the Developer’s sole discretion.   (e)                                  Operation of Wetlands Mitigation Bank.  In the event of a conveyance of the Empire Tract prior to the initiation and/or completion of wetlands mitigation activities (wetlands restoration and sale of mitigation credits) in accordance with Section 3.5(c) hereof, the Developer shall be granted a license to operate the Wetlands Mitigation Bank, which license shall provide, among other things, that (i) the Authority and the owner of the Empire Tract shall have no responsibility for operation of the Wetlands Mitigation Bank, (ii) the Developer shall indemnify, protect, defend and hold harmless the Authority and the owner of the Empire Tract from and against all claims arising in connection with operation of the Wetlands Mitigation Bank, and (iii) the Developer’s failure to operate the Wetlands Mitigation Bank in all material respects in accordance with applicable WMB Approvals shall result in termination of the license following receipt of written notice of such failure from the Governmental Body having competent jurisdiction and the provision of a reasonable cure period (in light of the work required to be performed or the actions required to be taken by the Developer to cure such failure), but not less than ninety (90) days.  The Developer’s rights with respect to the establishment and operation of the Wetlands Mitigation Bank (including without limitation, the right to receive and market the mitigation credits and retain proceeds derived from the sale of such credits) may be transferred, assigned or pledged by the Developer, in its sole discretion.   SECTION 3.6.  Additional Developer Commitments.  (a) Job Skills Training.  (i) Concurrent with submittal of Item No. 15 of the Master Plan requirements described in Section 6.2(c)(i)(15) hereof, Developer shall prepare and submit to the Authority for its review and comment, a written plan for the establishment and operation by (or on behalf of) the Developer of a job skills center intended to aid prospective employees of the Project in acquiring the education and job skills necessary to obtain and maintain employment at the Project.  Such plan shall include a reasonable estimate of the amount to be expended by (or on behalf of) the Developer or its designee (which designee shall be subject to the reasonable approval of the Authority) with respect to the Job Skills Program (as hereinafter defined).  Developer shall, at no cost or expense to the Authority, initiate and maintain the program through the opening of the Entertainment/Retail Component.  Following receipt of the Authority’s reasonable comments, the Developer shall endeavor in good faith to revise such proposed plan, which revision shall establish the scope of the job skills programs that the Developer shall be required to initiate and maintain through the opening of the Entertainment/Retail Component (the “Job Skills Program”).   (ii)                                  Within six (6) months prior to the scheduled Completion Date of the Entertainment/Retail Component, the Developer shall provide a written notice to the Authority stating that the Job Skills Program has been effectuated, together with the results of   13   such Program, as of the date of such notice; provided however, that neither the provision of such notice nor the information set forth therein shall impact, in any manner, the other rights or obligations of the Parties under this Agreement.  From and after the Completion of the Entertainment/Retail Component, the Developer shall endeavor in good faith to cause the Job Skills Program to be reviewed annually through reasonable internal procedures established by Developer or its designee, taking into consideration the results of the prior twelve (12) months.  Based upon such internal review, the Developer shall provide the Authority with a written description of any modifications to the Job Skills Program proposed to be implemented during the next twelve (12) months.  The foregoing obligation shall, subject to the cap on expenditures set forth in Section 3.6(c) below, terminate on the earlier of (A) the first anniversary date of Completion of the Project in its entirety, or (B) three (3) years after Completion of the Entertainment/Retail Component.   (b)                                 Small Business Marketing Plan.  (i) the Authority for its review and comment, a marketing plan to assist small businesses located in the Municipalities.  Such plan shall be developed generally in accordance with the description set forth in Exhibit D hereto.   (ii)                                  Following receipt of the Authority’s reasonable comments, the Developer shall endeavor in good faith to revise such proposed plan which revision shall establish the scope of the Small Business Marketing Plan required to be initiated and maintained through the opening of the Entertainment/Retail Component (the “Small Business Marketing Plan”).   (iii)                               Within six (6) months prior to the scheduled Completion Date of the Entertainment/Retail Component (as set forth on any final construction schedule to be furnished to the Authority pursuant to any Construction Management Agreement), the Developer shall provide written notice to the Authority stating that the Small Business Marketing Plan has been effectuated, together with the results of such Plan, as of the date of such notice; provided however, that neither the provision of such notice nor the information set forth therein shall impact, in any manner, the other rights or obligations of the Parties under this Agreement.  From and after Completion of the Entertainment/Retail Component, the Developer shall endeavor in good faith to cause the Small Business Marketing Plan to be reviewed annually, taking into consideration the results of the prior twelve (12) months.  Based upon such review, the Developer shall provide the Authority with a written description of any modifications to the Small Business Marketing Plan proposed to be implemented within the next twelve (12) months.  The foregoing obligation shall, subject to the cap on expenditures set forth in Section 3.6(c) below, terminate on the earlier of (A) the first anniversary date of Completion of the Project in its entirety, or (B) three (3) years after Completion of the Entertainment/Retail Component.   (c)                                  Financial Commitment.  Notwithstanding the provisions of this Section 3.6 to the contrary, the total cost to the Project, including but not limited to, Developer’s or its designee’s costs relating to implementation, of the Job Skills Program and the Small Business Marketing Plan, as provided in Section 3.6 (a) and (b) respectively, shall not in the aggregate   14   exceed One Million Dollars ($1,000,000).  The Developer shall (in the exercise of its sole discretion) determine the amount, timing and nature of such expenditures.   SECTION 3.7.  Developer Interference; Authority Interference; Compliance with Existing Sports Complex Agreements.  The Parties acknowledge and agree that the business activities at the Sports Complex, including without limitation the Continental Airlines Arena, and the development, construction and operation of the Project creates the potential for interference by the Authority and the Developer with the conduct of business operations by the other.  In recognition of the foregoing, the Parties shall provide hereinbelow and in the Project Agreements (whether now in effect or to come into effect in the future) such commercially reasonable terms, covenants, conditions and dispute resolution procedures to which the Parties may mutually agree to avoid and resolve Authority Interference and Developer Interference.   (a)                                  Developer Interference. In the performance of the Developer’s obligations and exercise of the Developer’s rights under this Agreement and the Project Agreements, the Developer shall exercise diligent and commercially reasonable efforts so that performance by the Developer of its obligations or the exercise of its rights hereunder or under any Project Agreement shall be carried out in such manner as to minimize or eliminate Developer Interference.  In furtherance of the foregoing, Developer shall take all actions reasonably required to fully and completely enforce all of its legal rights and remedies against any third party performing the obligations or exercising the rights of Developer hereunder or under any Project Agreement or any third party utilizing the Project Site if such performance, exercise or use results in a Developer Interference or otherwise would constitute a breach of Developer’s obligations hereunder or under the Project Agreements.  The Parties shall use diligent and commercially reasonable efforts so that the potential for Developer Interference shall be minimized.   However, in light of the Developer’s construction and operation of the Project, the Parties acknowledge and agree that the potential for Developer Interference exists (notwithstanding the good faith actions of the Parties) and, as such, the occurrence of Developer Interference shall not be the basis for a determination by the Authority that a Developer Event of Default has occurred.  With respect to Developer Interference prior to the Ground Lease Closing Date, the terms of this Agreement and the Access and Indemnity Agreements shall control.  Following the Ground Lease Closing Date, the actions of the Parties with respect to Developer Interference and Authority Interference shall be governed by the applicable provisions of this Agreement as the same may be modified by the terms of the Construction Management Agreement, the Project Operating Agreement or other applicable Project Agreements.   (b)                                 Authority Interference. The Authority shall exercise diligent and commercially reasonable efforts so that performance by the Authority of its obligations or the exercise of its rights hereunder or under any Sports Complex Agreement shall be carried out in such manner as to minimize or eliminate Authority Interference.  In furtherance of the foregoing, the Authority shall take all actions reasonably required to fully and completely enforce all of its legal rights and remedies against any third party performing under a Sports Complex Agreement or any third party utilizing the Sports Complex if such performance or use results in Authority Interference or otherwise would constitute a breach of the Authority’s obligations hereunder or under the Project Agreements.  The Parties shall each use diligent and commercially reasonable efforts so that the potential for Authority Interference shall be minimized.  However, in light of   15   the Authority’s operation and use of the Sports Complex facilities, and the Developer’s construction and operating activities, the Parties acknowledge and agree that the potential for Authority Interference exists (notwithstanding the good faith actions of the Parties) and, as such, the occurrence of Authority Interference after the Ground Lease Closing Date shall not be the basis for a determination by the Developer that an Authority Event of Default has occurred.  Rather, in such events, the actions of the Parties after the Ground Lease Closing Date shall be governed by the applicable provisions of this Agreement, as the same may be modified by the terms of the Construction Management Agreement, the Project Operating Agreement or other applicable Project Agreements.  With respect to Authority Interference prior to the Ground Lease Closing Date, the terms of this Agreement and the Access and Indemnity Agreements shall control.  In no event shall any activity carried out by the Authority pursuant to the Enabling Legislation with respect to the Sports Complex constitute, in and of itself, an Authority Interference (i.e. development, construction, execution of agreements, conveyance of Authority property and other permitted Authority activities shall not, without demonstration of the Interference by the Developer, constitute Authority Interference.   (c)                                  Recognition and Priority of Existing Sports Complex Agreements.  Developer acknowledges that Developer has had the opportunity to review certain of the agreements relating to the Sports Complex, as more particularly described on Exhibit “H” attached hereto (the “Existing Sports Complex Agreements”) and shall review certain other agreements relating to the Sports Complex to be provided by the Authority during the due diligence period provided pursuant to Section 6.4 hereof.  Prior to the termination of the due diligence period provided in Section 6.4 hereof, Authority and Developer shall mutually agree on those Due Diligence Documents to be incorporated into Exhibit “H-1” as the final list of documents and agreements, which shall be initialed by the Parties and attached hereto, and thereafter Exhibit “H-1” shall constitute the Existing Sports Complex Agreements.  If the Parties fail to agree upon Exhibit “H-1” and this Agreement is not terminated, Exhibit “H” shall constitute the list of Existing Sports Complex Agreements.  Subject to the rights and obligations provided in Section 6.4 hereof, Developer recognizes the Existing Sports Complex Agreements and acknowledges that the rights granted to Developer and the obligations assumed by Developer hereunder are in all respects subordinate to the rights and obligations of the parties to the Existing Sports Complex Agreements.   (d)                                 Giants Lease. Developer acknowledges and agrees that the “Existing Sports Complex Agreements” include that certain Agreement of Lease between the Giants and the Authority dated as of August 26, 1971 together with such amendments and restatements as are set forth on Exhibit “H” attached hereto, (collectively, the “Giants Lease”). Developer also acknowledges that the Authority and the Giants have negotiated, but not executed, a memorandum of understanding providing for, among other things, the renovation of Giants Stadium pursuant to an amendment or restatement of the Giants Lease. The Parties recognize that a renovation of Giants Stadium may add additional complications and complexities to the transaction contemplated by this Agreement and the Project Agreements. The nature and extent of the complications and complexities will not be fully known until such time as the Authority and Giants enter into a binding amendment or restatement of the Giants Lease memorializing the rights, duties and obligations of the parties under the above-referenced memorandum of understanding. The Authority and the Developer recognize that it is in their mutual best interest   16   to provide in this Agreement and in the Project Agreements flexibility to accommodate the renovation of Giants Stadium. The Authority recognizes that the Developer has entered into this Agreement and made certain commitments to the Authority based in part on reliance on a time schedule that does not have unlimited flexibility. Accordingly, with respect to the Giants Lease and proposed redevelopment of Giants Stadium the Parties agree as follows:   (i)                                     The Authority anticipates that a final agreement will be reached with the Giants after the Effective Date, but prior to June 1, 2004 (hereinafter referred to as the “Giants’ Negotiation Period”). The Authority represents to the Developer that the terms and conditions of the memorandum of understanding are not final, and that the Authority will use its good faith and commercially reasonable efforts to negotiate a final agreement with the Giants that (A) is not materially inconsistent with the terms and conditions of this Agreement or the Project Agreements, (B) does not contravene the rights granted to the Developer or the Project hereunder (or any Component thereof) hereunder including but not limited to the rights granted under Section 3.7(b) or Articles 12, 13 and 20 herein, (C) will not result in a Material Adverse Effect on the Project or the Master Plan, (D) will not require a Major Modification or delay or materially increase the cost of the Project to the Developer including but not limited to the Traffic and Infrastructure Improvements (“A” through “D” above are hereinafter collectively referred to as the “Limiting Factors”).   (ii)                                  During the Giants Negotiation Period, (A) in the course of developing the Master Plan and obtaining Development Approvals, the Developer and Authority shall exercise their diligent and commercially reasonable efforts to consult and cooperate for the purpose of identifying the issues related to integrating the renovation of Giants Stadium with the terms and conditions of this Agreement and the Project Agreements, (B) the Developer shall use commercially reasonable efforts to maintain flexibility within the Master Plan to accommodate implementation of the renovation of Giants Stadium; provided however, that such obligation shall not be deemed to require the Developer to modify the Project (or any Component thereof or financing related thereto) or accommodate changes to the extent that such modification or accommodation would trigger any of the Limiting Factors, (C) the Authority shall use its diligent and commercially reasonable efforts to promptly proceed to finalize the documentation with the Giants consistent with the terms of the memorandum of understanding and Limiting Factors, and (D) the Authority will endeavor in good faith and use its diligent and commercially reasonable efforts to provide the Developer with periodic updates of the progress of such negotiations and obtain from the Giants a confidentiality agreement which permits the Authority to keep the Developer informed of the progress and content of the negotiations (and the Developer shall agree to execute such mutually acceptable confidentiality agreement).   (iii)                               If the Authority does not enter into a final amended Giants Lease for the renovation of Giants Stadium with the Giants prior to the expiration of the Giants’ Negotiation Period, (A) the Developer shall have no further duties or obligations under this Section 3.7(d) with respect thereto other than as expressly set forth in the other terms of this Agreement or the Project Agreements, and (B) the Authority shall not withhold, condition or delay any Approval described or required hereunder that affects or might affect the Giants, the Giants Lease or the renovation of Giants Stadium. If the Authority does reach a final agreement with the Giants prior to the expiration of the Giants’ Negotiation Period, the Authority shall   17   deliver a complete copy to the Developer. If the Giants Lease violates the Limiting Factors, Developer shall have the right to waive such violations or elect to terminate this Agreement upon written notice to the Authority within thirty (30) days of the expiration of the Giants’ Negotiations Period. If the Developer terminates this Agreement as aforesaid, the Authority shall promptly return to Developer the Deposit Letter of Credit and the monies paid under the Deposit Letter and thereafter the parties shall have no further rights, duties or obligations to each other hereunder.   (iv)                              If the final amended Giants Lease does not violate the Limiting Factors or Developer elects to waive any such violation, the Developer and Authority shall promptly and in good faith negotiate such modifications to the Project Agreements as may be necessary to accommodate the terms of the Giants Lease; provided that any such modifications are consistent with the Limiting Factors. At such time as the Authority and Developer agree on such modifications to the Project Agreements, the Developer, upon request from the Authority, shall acknowledge in writing that the amended Giants Lease as amended through the date of Developer’s acknowledgement constitutes an Existing Sports Complex Agreement and shall be deemed added to Exhibit “H” or Exhibit “H-1”, as the case may be, attached hereto. The provisions of Section 21 will govern any disputes between the Developer and the Authority associated with modifications to the Project Agreements as aforesaid.   (e)                                  New Sports Complex Agreements.  (i) The Authority shall not execute any New Sports Complex Agreement or enter into, or permit any other party (to the extent the Authority has consent or approval rights over the agreements entered into by the other party), to enter into any New Sports Complex Agreement that may presently or might in the future have a Material Adverse Effect on the Developer or the Project (or any Entertainment/Retail Component Use, any Office Component Use and/or any Hotel Component Use, including parking related thereto), may result in Authority Interference or breach the non-competition and other restrictive covenants provided in Section 13.6 hereof or result in a breach by the Authority of the Project Agreements.  The Authority shall promptly provide to the Developer for its review, copies of all proposed New Sports Complex Agreements.   (ii)                                  The Developer and the Project shall not be bound by, and the provisions of  Section 3.7(a) hereof relating to Developer Interference shall not apply to, any New Sports Complex Agreement unless the Developer has reviewed and Approved such New Sports Complex Agreement.  Subject to the foregoing, Developer shall, to the extent practicable (without adversely impacting the Developer’s rights or obligations hereunder or under any Project Agreement and without materially increasing the Developer’s cost of the design, permitting, construction, use, operation or management of the Project and/or the Traffic and Infrastructure Improvements), cooperate with the Authority at the Authority’s request with respect to the negotiation, renewal, and/or extension of any Existing Sports Complex Agreements and/or any New Sports Complex Agreements.  Such cooperation shall be at no out-of-pocket third-party cost or expense to the Developer.   (f)                                    Shared Parking Plan.  Notwithstanding the foregoing, the Parties acknowledge and agree that the Developer intends to develop the Parking Component and carry out its obligations hereunder through implementation of a shared parking plan pursuant to which   18   (i) the Developer will provide for the Authority’s use of a portion of the Parking Component so as to permit the Authority to satisfy its obligations under the Sports Complex Agreements, and (ii) the Authority shall make at least 4,500 parking spaces located on the existing surface parking lots located to the west of the Project Site available to the Developer at all times other than the days on which parking is required for events being held at the Meadowlands Complex.  The specific provisions concerning such shared parking plan shall be set forth in the Construction Management Agreement, the Project Operating Agreement and the Declaration.   (g)                                 Compliance with “Smart Growth” Criteria.  The Parties shall use commercially reasonable efforts to utilize the Parking Component so as to comply with State “smart growth” transportation criteria.   (h)                                 No Interference.  In consideration of the foregoing, the Parties agree that use of (i) a portion of the Parking Component by the Authority (as described in Section 3.7(f)(i) above) will not constitute Authority Interference, and (ii) the surface parking lots by the Developer (as described in Section 3.7(f)(ii) above) will not constitute Developer Interference.   (i)                                     Indemnification.  The rights, obligations and liabilities of the Parties under this Section 3.7 shall be subject to the mutual indemnification provisions of Section 17.6 and Section 17.7 hereof.   ARTICLE 4 THE PROJECT SITE   SECTION 4.1.  Project Site.  The Project Site consists of the surface of the land, subsurface beneath the land and airspace above the land, as more particularly described in Exhibit “A” attached hereto, subject to Permitted Exceptions.   SECTION 4.2.  Title Review; Permitted Exceptions.  (a) Title Review.  Prior to the Effective Date, the Developer has ordered (but not received) a commitment for insurance of the Developer’s leasehold interest in the Project Site to be issued in favor of the Developer (the “Title Insurance Commitment”) as the lessee of the Project Site.  Such Title Insurance Commitment shall be written by Fidelity National Title Insurance Company, or such other title insurance company selected by the Developer and licensed to do business in the State of New Jersey (“Title Insurer”).  Such Title Insurance Commitment as initially issued and without clearance or omission of any items, together with copies of all recorded documents and other items noted as exceptions therein, shall be promptly provided by the Developer to the Authority, but in no event later than sixty (60) days following the Effective Date.   (b)                                 Objections to Title; Permitted Exceptions.  (i) Not later than sixty (60) days after the date on which the Developer provides the Title Insurance Commitment to the Authority and obtains the Perimeter Survey, as provided in Section 6.1(a) hereof (the “Title Objection Date”), the Developer shall inform the Authority in writing of any objections to title and survey (such objections to survey as provided under Section 6.1(a) hereof and collectively, such title and survey objections are hereinafter referred to as the “Title Objections”) to the real property covered by the Title Insurance Commitment, including without limitation, any   19   encumbrance adversely affecting the proposed use or enjoyment of the Project Site in accordance with the Master Plan.  For purposes of this Section, Title Objections shall not include any easements or similar encumbrances that can be resolved, removed or otherwise addressed by the Developer as part of, or as a Material Condition (such as, but not limited to, on-site utilities that are to be relocated as part of construction of the Project), without any additional material cost to the Developer in excess of amounts contemplated to be expended by Developer pursuant to the terms hereof.   (ii)                                  The Authority shall (at its sole cost and expense) use diligent and commercially reasonable efforts, at the earliest practicable date but in no event later than the Material Conditions Termination Date, to resolve any Title Objections to the reasonable satisfaction of the Title Insurer and the Developer such that the Title Insurer agrees to issue its Title Insurance Commitment to omit or provide affirmative insurance with respect to all Title Objections in question in a manner reasonably satisfactory to the Developer and its Project Lenders.  The Authority hereby agrees to cure and cause to be released any or all mortgages, deeds of trust and other monetary liens or encumbrances (including, without limitation, mechanics and materialmen’s liens (except for those liens which arise out of work performed by (or on behalf of) the Developer) and judgment and/or attachment liens, and liens arising as a result of delinquent taxes or assessments), affecting all or any portion of the Project Site which exist as of the Effective Date and/or come into existence on or prior to the Ground Lease Closing Date and if the Authority fails to do so, any such liens (except for those liens which arise out of work performed by (or on behalf of) the Developer) and except for mechanic’s or materialmen’s liens which the Authority is contesting in good faith and which have been bonded over by the Authority or insured over by the Title Insurer in a manner reasonably satisfactory to the Developer and its Project Lender(s) shall be paid out of the proceeds of and credited against the Development Rights Fee (as the same may be adjusted pursuant to the terms of this Agreement); provided however, that the Authority shall not be obligated to cure non-consensual liens that, in the aggregate, exceed the amount of the Development Rights Fee; and provided further that, in the event that such non-consensual liens, in the aggregate, exceed the amount of the Development Rights Fee, the Developer shall have the right (but not the obligation) to cure such liens on the Authority’s behalf.  In such event, the amount paid by the Developer shall be offset against any payments then due and payable or to be paid by the Developer during the term of this Agreement, the Ground Lease or by a Component Entity under any Component Lease (including specifically and without limitation, the Ground Rent and/or the Developer PILOT Payments).  If any Title Objection is not resolved to the Developer’s and its Project Lenders’ reasonable satisfaction as aforesaid prior to the Material Conditions Termination Date, as the same may be extended from time to time in accordance with the terms of this Agreement, the Material Condition relating to Title Objections set forth in Section 8.2(b)(viii) hereof shall be deemed not to have been satisfied, unless the Developer waives such Title Objection by written notice to the Authority.   (iii)                               Any defect, lien, encumbrance or other objection to title shown on the Title Insurance commitment and/or survey and not raised in a timely manner as aforesaid (and any such objection waived by the Developer as aforesaid) shall constitute a “Permitted Exception(s)” hereunder and under the Ground Lease and any applicable Component Lease (“Permitted Exceptions”).  A schedule of Permitted Exceptions will be annexed to the Ground   20   Lease prior to execution.  Upon execution and delivery of the Ground Lease, the Developer shall be deemed to have elected to proceed hereunder subject to all Permitted Exception(s).   (c)                                  Indemnification.  The rights, obligations and liabilities of the Parties under this Section 4.2 shall be subject to the mutual indemnification provisions of Section 17.6 and Section 17.7 hereof.   SECTION 4.3.  Title Insurance. As a condition to execution of the Ground Lease, the Title Insurer shall issue to the Developer or be irrevocably committed to issue to the Developer an American Land Title Association Lessee’s Policy with such endorsements which the Developer or the Project Lender(s) shall reasonably require, including, without limitation, such endorsements as may be necessary to cure Title Objections which the Authority has elected or is obligated to cure pursuant to the terms of this Agreement (the “Title Policy”), in the amount to be determined by the Developer, but in no event less than the amount of the Development Rights Fee payable on the Ground Lease Closing Date (as the same may be adjusted pursuant to the terms hereof), insuring that the leasehold interest in the Project Site is vested in the Developer subject only to the Permitted Exceptions.  The Developer shall be entitled to request that the Title Insurer provide such additional endorsements (or amendments) to the Title Policy as the Developer or the Project Lender(s) may reasonably require, provided that (a) such additional endorsements (or amendments) shall be at no cost to, and shall impose no additional liability on the Authority (unless such endorsements are required in order to cure any Title Objection that remains by reason of the failure of the Authority to cure same in accordance with the terms hereof, in which case the Authority shall bear the cost) and (b) the Developer’s obligations to effectuate the Ground Lease Closing under this Agreement shall not be conditioned upon receipt of such additional endorsements and the Ground Lease Closing shall not be delayed as a result of the Developer’s request or inability to obtain such additional endorsements, unless such endorsements are required in order to cure any Title Objections and are otherwise not waived by the Developer.   ARTICLE 5 PAYMENTS AND FINANCIAL OBLIGATIONS   SECTION 5.1.  Developer’s Financial Obligations.  Except as expressly provided to the contrary herein, including specifically and without limitation (i) Section 3.3(d) hereof (with respect to payment of the costs of the Final Traffic and Infrastructure Improvements that exceed the Traffic and Infrastructure Cap Amount), (ii) Section 4.2(b) hereof (with respect to payments required to cure Title Objections), and (iii) Section 15.3(f) hereof (with respect to payment of the Authority’s Environmental Remediation Contribution), the costs of evaluating, designing, permitting, implementing, constructing, managing and operating the Project shall be borne solely by or through the Developer, including without limitation, payment of fees for Development Approvals, Building Permits, cost overruns and the Traffic and Infrastructure Improvements (up to, but not exceeding, the Traffic and Infrastructure Cap Amount); provided however, that the Authority shall be obligated to pay any costs (including without limitation, its own legal fees and expenses) incurred by the Authority with respect to the preparation, negotiation and/or review of any Project Agreements and Development Approvals by the Authority.   21   SECTION 5.2.  Development Rights Fee; Refundable Security Deposit; Ground Rent. (a) Development Rights Fee. (i) In consideration for the right to construct and operate the Project on the terms set forth in this Agreement, the Developer has agreed to pay a development rights fee in the amount of One Hundred Sixty Million Dollars ($160,000,000) (the “Development Rights Fee”).  The Developer shall not, however, be obligated to pay the Development Rights Fee until the Ground Lease Closing Date occurs and the Authority shall not be obligated to execute and deliver the Ground Lease unless the Development Rights Fee has been paid in full.  The Developer shall pay (or, to the extent applicable, the Component Entity executing the Component Agreement shall pay its allocated portion of) the Development Rights Fee (less the sum of Five Hundred Thousand Dollars ($500,000)) paid to the Authority pursuant to the Deposit Letter and any adjustments, credits or offsets expressly applicable under this Agreement) to the Authority on the Ground Lease Closing Date.   (ii)                                  The Development Rights Fee shall be allocated among the Entertainment/Retail Component, the Office Component and the Hotel Component.  From and after the date that each Component Agreement and/or Component Lease is executed, the Developer shall be released from the obligation to pay the allocated portion of the Development Rights Fee with respect to the Component Interest that is the subject of such Component Agreement and Component Lease, and the Authority shall thereafter look solely to the applicable Component Entity for payment of such portion of the Development Rights Fee; provided however, that (A) any reduction in the Development Rights Fee expressly provided herein (including, without limitation, a reduction pursuant to Section 13.3 hereof) shall be made from the full amount of the Development Rights Fee without taking into account any allocation of the Development Rights Fee amongst the Project Components by Developer and (B) the Authority shall not be obligated to execute the Ground Lease, any Component Lease or any Component Agreement prior to receipt of the entire Development Rights Fee in accordance with Section 5.2(a) above.   (b)                                 Refundable Security Deposit.  In order to assure the full and timely performance by the Developer of its obligations under this Agreement from and after the Effective Date until the Ground Lease Closing Date (or the Material Conditions Termination Date, as the case may be), the Developer has agreed to make payment to the Authority of a refundable security deposit in the amount of Ten Million Dollars ($10,000,000) (the “Refundable Security Deposit”), through delivery of an irrevocable, direct pay letter of credit issued by a financial institution reasonably acceptable to the Authority (the “Deposit Letter of Credit”).  The Deposit Letter of Credit shall name the Authority as beneficiary and shall be substantially in the form set forth in Schedule 5.2(b) hereof.  The Refundable Security Deposit shall be delivered by the Developer to the Authority on the Effective Date.   (c)                                  Disposition of Refundable Security Deposit.  The Refundable Security Deposit shall be held (but not used) by the Authority unless released in accordance with the terms hereof.  Upon such release, the Refundable Security Deposit shall be disbursed as set forth hereinbelow:   (i)                                     In the event that this Agreement is terminated by the Authority as a result of the occurrence of a Developer Event of Default at any time prior to the Ground Lease   22   Closing Date, and no Authority Event of Default shall have occurred and be continuing, the Refundable Security Deposit shall be retained by the Authority as liquidated and final damages, as the case may be.  From and after the date that the funds representing the Refundable Security Deposit are released to the Authority, Developer shall have no further obligation or liability to the Authority with respect to the Project and the Authority shall be released and discharged from any further obligations to Developer hereunder, except for any obligations of Developer or Meadowlands Mills Limited Partnership under this Agreement or any obligations under the Access and Indemnity Agreements that are expressly stated to survive termination.   (ii)                                  In the event that this Agreement is terminated by Developer as a result of (A) the occurrence of an Authority Event of Default, so long as no Developer Event of Default shall have occurred and be continuing, or (B) failure to satisfy the Material Conditions set forth in Section 8.2 hereof on or prior to the Material Conditions Termination Date (and such failure is not the result of a Developer Event of Default), then the to the Developer.   (iii)                               In the event that the Material Conditions set forth in Section 8.2 hereof have been satisfied or waived on or prior to the Material Conditions Termination Date, the Deposit Letter of Credit shall be returned to the Developer on the Ground Lease Closing Date simultaneously with payment of the Development Rights Fee.   (iv)                              In the event that the Developer willfully elects not to proceed with performance of its material obligations under this Agreement (whether prior to or on the Material Conditions Termination Date), and such election is not the result of the occurrence of a Force Majeure Event or Authority Event of Default that precludes the Developer and/or the Authority from fully satisfying the obligations provided herein on the terms and conditions herein provided or the result of the non-satisfaction of any Material Condition, the Refundable Security Deposit shall be paid to the Authority.  From and after the date that the funds representing the Refundable Security Deposit are released to the Authority, the Developer shall have no further obligation to the Authority with respect to the Project and the Authority shall be released and discharged from any further obligations to Developer hereunder, except for any obligations of Developer or Meadowlands Mills Limited Partnership under this Agreement or the Access and Indemnity Agreements that are expressly stated to survive the termination.   (c)                                  Payment of Balance of Development Rights Fee.  In the event that the Material Conditions set forth in Section 8.2 hereof have been satisfied or waived by the Developer on or prior to the Material Conditions Termination Date, the Developer shall make payment of the balance of the Development Rights Fee (in the amount of One Hundred Fifty-Nine Million Five Hundred Thousand Dollars ($159,500,000), to the Authority on the Ground Lease Closing Date, subject to such pro-rations and adjustments as are expressly provided for herein.  Concurrently with the Authority’s receipt of the Development Rights Fee, the Authority shall return the Deposit Letter of Credit to the Developer, together with a letter confirming the cancellation and surrender of the Deposit Letter of Credit, signed by an authorized signatory of the Authority.   23   (d)                                 Ground Rent.  (i) In consideration for the Authority’s execution of the Ground Lease and the Developer’s rights to lease and utilize the Project Site for the purposes set forth in this Agreement and the Ground Lease, during the term of the Ground Lease, subject to the terms hereof, the Developer shall pay the Ground Rent to the Authority on the dates and in the amounts set forth on Schedule 5.2(d) hereto.   (ii)                                  From and after the date that a Component Lease and Component Agreement are executed, the Developer shall be released from the obligation to pay Ground Rent with respect to the Component Interest that is the subject of such Component Lease and Component Agreement and the Authority shall thereafter look solely to the applicable Component Entity for payment of such portion of the Ground Rent.  Notwithstanding anything herein to the contrary, Developer shall not allocate any amount in excess of one-third of the obligation to pay Ground Rent to any one of the Hotel Component and Office Component.   SECTION 5.3.  PILOT Payments.  (a) Developer hereby covenants and agrees that it shall pay to the Authority on a quarterly basis, or on such dates otherwise established by the Settlement Agreement, as same may be amended pursuant to this Agreement, those amounts identified as “PILOT Payments” on Attachment 1-F of the Response to Third RAI, as referenced in the definition of Developer’s Response.  Following the final year set forth on said Attachment 1-F, Developer shall continue to make such payments for the term of the Ground Lease, as such term may be extended, in amounts increasing from the amount paid in the final year identified on Attachment 1-F of the Response to Third RAI, such increases to be determined by the same method by which increases to Ground Rent are calculated in Schedule 5.2(d) (but without regard to any provision for reduction set forth therein).  All payments required to be made pursuant to this Section 5.3(a) shall be referred to as “Developer PILOT Payments”.   (b)                                 Covenants; Property Tax Waiver.  The Authority acknowledges that the transaction contemplated hereunder and the covenant by Developer to make Developer PILOT Payments provided herein assumes that the Project Site remains tax exempt for real estate ad valorem tax purposes.  Developer acknowledges that, pursuant to the Enabling Legislation and the Settlement Agreement, payments in lieu of real property taxes (“PILOT Payments”) are payable to the Borough by the Authority in connection with facilities located within the Sports Complex as of the Effective Date.  The amount of PILOT Payments is fixed by the Settlement Agreement; however, the Authority shall be responsible for negotiating and finalizing amendments to the Settlement Agreement, if any, relating to the Project, including without limitation, a legally binding and enforceable waiver (in recordable form and to run with the land) by the Borough of its rights under the Settlement Agreement (or any successor agreement thereto) to assess and collect ad valorem real property taxes from the Developer with respect to its leasehold interest in the Project Site (the “Property Tax Waiver”).  To the extent that the amount agreed to be paid by Developer as Developer PILOT Payments pursuant to Section 5.3(a) hereof exceeds the amount of PILOT Payments required to be paid to the Borough by the Authority, the Authority shall retain such excess to be used for any lawful Authority purpose; provided however, that the Authority shall provide written notice to the Developer of the Authority’s determination as to the use and distribution of such excess PILOT Payments.  In the event that the Borough or any third party challenges the Authority’s actions with respect to the Authority’s payment of the PILOT Payments, the Authority shall promptly take all such actions   24   as are required to contest such challenge and/or defend such actions.  To the extent that the Developer incurs any costs (including without limitation, reasonable attorneys fees and disbursements) in connection with any such challenges (whether in the defense of same or as a result of a final, non-appealable order of a court of competent jurisdiction determining that the Developer is obligated to pay any additional amounts), the Developer may offset the costs incurred (following the provision of written notice and supporting documentation to the Authority), together with interest thereon from the date such costs were incurred at the Overdue Rate against any amounts then due and payable or to be paid to the Authority under this Agreement (including specifically and without limitation, the Developer PILOT Payments) and/or any other Project Agreements.  For the purposes of this Agreement, PILOT Payments and Developer’s PILOT Payments shall be deemed to cover payment for all services provided by (or on behalf of) the Borough to non-residential taxpayers, the costs of which are recovered by the Borough through payment of ad valorem real property taxes (including specifically and without limitation, police, fire, emergency medical, etc.).  In the event that, notwithstanding payment of the Developer PILOT Payments, the Developer is billed for any of the foregoing services or in the event that the Borough imposes real property assessments and taxes directly against the Developer, the cost for any such assessments, taxes and services paid by the Developer shall be offset, together with interest thereon at the Overdue Rate (plus any costs incurred by the Developer with respect to contesting same, including without limitation, reasonable attorneys fees) against any amounts due and payable or to be paid by the Developer to the Authority (including specifically and without limitation, the Developer PILOT Payments and Ground Rent) under this Agreement and/or any other Project Agreements.   (c)                                  Allocation of PILOT Payments.  Nothing contained herein shall preclude the Developer from allocating the Developer PILOT Payments among the Component Leases that may be executed with respect to each of the Entertainment/Retail Component, the Office Component and/or the Hotel Component, such allocations being limited proportionally as set forth for Ground Rent in Section 5.2(d)(ii) hereof.  From and after the date that each such Component Lease is executed (provided that a Component Agreement has also been executed), the Developer shall be released from the obligation to pay the Developer PILOT Payments with respect to the Component Interest that is the subject of such Component Lease and Component Agreement and the Authority shall thereafter look solely to the applicable Component Entity for payment of such portion of the Developer PILOT Payment.   (d)                                 PILOT Negotiation Period.  During the period from the Effective Date to ninety (90) days following the Effective Date (hereinafter referred to as the “PILOT Negotiation Period”), the Authority shall negotiate an amendment of the Settlement Agreement effectuating the provisions of this Section 5.3, including without limitation, the Property Tax Waiver.  The terms and conditions relating to such amendment shall be determined by the Authority in its sole discretion.  In the event that an amendment of the Settlement Agreement has not been agreed to by the Authority and the Borough on or prior to the last day of the PILOT Negotiation Period, the Authority shall provide written notice to such effect to the Developer.  Thereafter, the Developer shall have the right to negotiate directly with the Borough with respect to the matters described in this Section 5.3, including without limitation, the Property Tax Waiver.  Any agreement reached by the Developer and the Borough shall be reasonably acceptable to the Authority.  The Authority shall be obligated to approve such agreement as long as such   25   agreement does not have a Material Adverse Effect on the Authority and does not provide for payment by the Authority of amounts in excess of the Developer PILOT Payment.   (e)                                  Authority’s Lien Rights  Notwithstanding anything contained herein, the Parties agree that as long as the Project Site remains tax exempt, the Developer PILOT Payments shall be a continuous lien on and against the Project Site.  Such lien shall be perfected (in a manner reasonably determined by the Authority) for all purposes in accordance with law and the lien thereafter shall be superior to all non-municipal liens thereafter recorded or otherwise arising, including without limitation, the lien of any Project Indebtedness.   (f)                                    Indemnification.  The rights, obligations and liabilities of the Parties under this Section 5.3 shall be subject to the   SECTION 5.4.  Authority’s Profit Participation.  (a) The Authority shall be entitled to a payment, in addition to the Ground Rent, equal to five percent (5%) of ordinary net cash flow and net capital proceeds after the “Initial Threshold” is achieved, and ten percent (10%) of ordinary net cash flow and net capital proceeds after the “Second Threshold” is achieved (the “Authority Profit Participation”). The Authority Profit Participation shall be paid on an annual basis after all appropriate calculations are made by the Developer (or the applicable Component Entity, as the case may be) for the preceding fiscal year of operation and shall be paid to the Authority, if the Authority Profit Participation is due and payable to the Authority hereunder upon completion of the annual audited statements of the Developer (or such Component Entity).  As used herein, “Initial Threshold” shall mean that amount which shall equal the aggregate of (i) all invested capital by the Developer (including any Component Entity) in or in connection with the Project; (ii) all invested capital by Mills, its Affiliates or the Developer (including any Component Entity) in or in connection with the Empire Tract; and (iii) a twenty-five percent (25%) internal rate of return calculated on the sum of (i) and (ii) above; which shall be received by the Developer or any Component Entity affiliated with the Developer (including amounts distributed to the partners of the Developer or such Component Entity) as distributions from or on account of the Project and the Empire Tract, if any.  As used herein, “Second Threshold” shall mean that amount which shall equal the aggregate of (i) and (ii) above plus a thirty percent (30%) internal rate of return calculated on the sum of (i) and (ii) above which shall be received by the Developer and any Component Entity affiliated with the Developer (including amounts distributed to the partners of the Developer and such Component Entity) from or on account of the Project and the Empire Tract, if any.  The Authority Profit Participation shall be paid in any year, after the Initial Threshold and/or Second Threshold are achieved, that the Developer (or such Component Entity) earns net ordinary cash flow or net capital proceeds.   (b)                                 Allocation.  Nothing herein shall preclude the Developer from allocating the Authority Profit Participation among the Component Leases and Component Agreements that may be executed with respect to Hotel Component.  From and after the date that each such Component Lease and Component Agreement is executed, the Developer shall be released from the obligation to pay the Authority Profit Participation with respect to the Component Interest that is the subject of the Component Lease and Component Agreement and the Authority shall   26   portion of the Authority Profit Participation.  However, notwithstanding such allocation, the aggregate amount of the payments to be made to the Authority shall not exceed the payments calculated pursuant to the formula set forth in Section 5.4(a) hereof.   ARTICLE 6 PRE-DEVELOPMENT ACTIVITIES; MASTER PLAN   SECTION 6.1.  Surveys.  (a) Perimeter Project Site Survey.  (i) As part of the Title Review to be conducted under Section 4.2 hereof, the Developer shall (at its cost and expense) promptly cause a survey to be prepared showing the perimeter boundaries of the Project Site (the “ALTA Survey” or the “Perimeter Survey”).  The Perimeter Survey shall be prepared by a surveyor licensed to practice in the State of New Jersey and shall be prepared in conformance with Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, 1997, for Urban Surveys, including items 2, 3, 5 and 11 from Table A.   (ii)                                  Any defects, encumbrances, ambiguities or similar issues identified on the Perimeter Survey shall be included by the Developer in determining whether there are any Title Objections, as contemplated by Section 4.2(b) above.   (iii)                               The Perimeter Survey shall be recorded on the Ground Lease Closing Date, together with a short-form Memorandum of Ground Lease.  The costs of recording shall be paid by the Developer.   (b)                                 Conceptual Project Site Plan.  A map showing the Project Site boundaries and proposed location of each Project Component and the location of all Preliminary Traffic and Infrastructure Improvements has been prepared by the Developer and reviewed and approved by the Authority (the “Conceptual Project Site Plan”).  A copy of the Conceptual Project Site Plan is attached as Schedule 6.1(b) hereto and shall serve as the basis for development of the Master Plan.   (c)                                  Delivery of Survey.  Promptly upon completion, the Developer shall provide or cause to be provided to the Authority (at the Developer’s cost and expense) three (3) original certified or reproductions of certified copies of the Perimeter Survey, and accompanying metes and bounds descriptions.  The Developer shall also provide for each Survey and description a digital version as an Auto CAD drawing in .DWG or .DFX format on either diskette or CD Rom.   SECTION 6.2.  Procedures Governing Review and Approval of Master Plan.  (a) General.  (i) The Parties acknowledge and agree that they shall exercise their respective diligent and commercially reasonable efforts to design and construct the Project and the Traffic and Infrastructure Improvements in such manner so as to be consistent with (A) the important public policy, governmental, environmental, land use planning, transportation and economic goals and prerogatives of the State, the Authority, the County of Bergen, the NJMC and the Municipalities and to assure that such policies and goals are protected and/or effectuated in an effective, efficient and consistent manner, (B) the important policies and prerogatives previously   27   articulated by the Stakeholders Advisory Group are effectuated in an effective, efficient and consistent manner in light of the competing goals and prerogatives of other affected constituent groups and/or the Developer, (C) the Authority achieving its desired policy, regional planning and economic goals and objectives while assuring compliance by the Authority with the duties and obligations imposed upon the Authority under the Sports Complex Agreements and/or as required to effectively and efficiently operate the Sports Complex in the manner envisioned by the Enabling Legislation and in compliance with all Sports Complex Agreements, and (D) the Developer being able to design, permit and proceed with construction of the Project in a timely, cost effective and efficient manner in accordance with this Agreement and the Project Agreements.   (ii)                                  In furtherance of the foregoing, in order to facilitate the development of a mutually acceptable design, site plan and technical approach to any required Remediation of the Project Site and construction of the Project Components and Traffic and Infrastructure Improvements in the most efficient, cost-effective and consistent manner practicable, the Parties have established the procedures set forth below for the preparation of a master plan (the “Master Plan”) by the Developer for submittal to and review and Approval of the Authority in phases.   (b)                                 Purpose of Master Plan.  (i) Subject to the terms and conditions of this Agreement, the Developer shall cause the Project to be constructed and operated in (A) substantially the manner shown and described in the Approved Master Plan, the narrative description related thereto, and the drawings, Plans and Specifications, in each case as prepared by the Developer in support of the applications for the Development Approvals, as any of the foregoing may be modified from time to time to reflect changes in the composition of the Project, and (B) consistent in all material respects with the Conceptual Site Plan or the Approved Master Plan, as the case may be, the Perimeter Survey and the Development Approvals.   (ii)                                  The Master Plan is intended to provide the Authority with sufficient reasonable information (at the early stages of Project development) so as to enable it to achieve its goals and prerogatives and to carry out its obligations with respect to the ownership and operation of the Sports Complex, while balancing the legitimate rights, obligations and prerogatives of the Developer.  Subject to the provisions of this Agreement (and the exercise of any regulatory or similar powers granted to it by the Enabling Legislation), the Authority may exercise its rights and prerogatives in furtherance of its policy goals and contractual obligations in such manner as it reasonably determines (subject to applicable Legal Requirements).  However, following its Approval of the Master Plan, the Authority’s powers with respect to the design, entitlements, uses, development and construction of the Project shall be limited to customary municipal oversight and the review and Approval rights expressly set forth in this Agreement and the Project Agreements to determine that the Project is designed, constructed and operated in accordance with the Approved Master Plan and the terms of this Agreement.   (c)                                  Master Plan Requirements.  (i) The Master Plan shall include information sufficient to determine compliance with this Agreement.  As such, the Master Plan shall address each Project Component and each of the Parking Component Uses, Entertainment/Retail Component Uses, and, to the extent applicable, Hotel Component Uses, and Office Component   28   Uses. At such time as the Developer submits a detailed Master Plan for the Office Component and the Hotel Component, the provisions of this Section 6.2 shall be applicable to such submittals with the same effect as if such submittals were made as part of the initial Master Plan and not as a Post-Approval Item (as such term is hereinafter defined).   The Master Plan shall also include the following:   (1)                                  Reasonably detailed plans depicting existing rights-of-way and easements, as well as temporary and proposed rights-of-way and easements, in the Project Site, and shared use of the Authority’s wastewater and stormwater management systems.   (2)                                  Reasonably detailed plans noting the use, location, total gross floor area, plan area, set backs, height and bulk of all existing and proposed structures within the Project Site.   (3)                                  A reasonably detailed plan showing vehicular parking and loading areas and a layout of pedestrian and vehicular and mass-transit circulation patterns in relation to buildings and public facilities within the Meadowlands Complex and within the vicinity of the Project Site.   (4)                                  Landscape plans reasonably sufficient to show general design concepts.   (5)                                  The Preliminary Project Sequencing Plan and the Preliminary Traffic and Infrastructure Sequencing Plan, as such Preliminary Plans may be updated and modified in accordance with the terms of this Agreement so as to develop the Final Project Sequencing Plan and the Final Traffic and Infrastructure Sequencing Plan.   (6)                                  Such portion of the Plans and Specifications in reasonably sufficient detail to support Development Approval applications with respect to each of the Project Components and, to the extent applicable, the Traffic and Infrastructure Improvements, including without limitation, elevation drawings.   (7)                                  Reasonably detailed design criteria to be followed for exterior building finishes.  Such criteria shall address exterior architectural standards, including expectations as to acceptable materials, non-acceptable materials in highly-visible areas (such as rib-face, split-face block or pointed CMU), fenestration requirements, required glazing, tints, etc.  In addition, design criteria relating to amenities to be constructed for the convenience of the occupants of each Component.   (8)                                  A narrative and graphic description of the configuration, including spatial relationships of the buildings to each other and to other Components, Sports Complex and Arena, location of parking and service areas and the amount of landscaping to be provided in pedestrian courtyards, parking areas and around the buildings.   29   (9)                                  Reasonably detailed design criteria to be followed for exterior signage and criteria for graphics packages for exterior Project signage.   (10)                            Reasonably detailed architectural design criteria to be followed with respect to each of the buildings and structures that comprise the Project.   (11)                            A traffic study (“Traffic Study”) analyzing the impact of the development of the Project on existing infrastructure.  The Traffic Study shall assess, among other things, the traffic impacts based upon construction of the entire Project.  The limits of the study area shall be submitted to the Authority for review prior to initiating any field work.   (12)                            To the extent not addressed in the Construction Management Agreement, the Project Operating Agreement and/or the Declaration, (a) a reasonably detailed parking management plan describing the impact of the development and construction of each Component on parking available for the Project and the Sports Complex, and a plan to provide the Authority with access to and use of parking facilities for the conduct of Sports Complex operations, and (b) a reasonably detailed plan describing the impact of the development, construction and, following Completion, operation of each Component on the Sports Complex and a plan to coordinate such activities with the use of the Sports Complex by the Authority for the conduct of the Authority’s activities and operations and/or the Sports Complex Tenants under the Sports Complex Agreements.   (13)                            A reasonably detailed report analyzing the impact on police, fire and emergency medical services resulting from the proposed Project and an emergency services plan for the Project developed in collaboration with the Borough and the Authority.  Such plan shall be timely updated in connection with the construction of each Component of the Project.   (14)                            A map and schedule setting forth a plan for the accommodation and continued use of the Arena and the Arena Site, including any renovations, re-use or redevelopment of the Arena that the Authority may undertake following the Effective Date in accordance with this Agreement.   (15)                            The Job Skills Program plan, the Small Business Marketing Plan.   (16)                            Such additional documents as the Authority may reasonably request in connection with its review of the Master Plan all in reasonable detail and consistent in form and substance with the terms of this Agreement.   (ii)                                  The statements and documents required to be included in the Master Plan may be combined.  The Master Plan may be submitted on a phased basis to reflect the individual Project Components (or Phases thereof) and the Authority shall review such phased submittals, as received.   30   (iii)                               Nothing contained herein shall preclude the Developer from initially submitting a Master Plan that provides the above information with respect to the Entertainment/Retail Component and the initial Phases of the Parking Component, while reserving the provision of detailed information concerning the Office Component and the Hotel Component to a later date.  In such event, the provisions of this Section 6.2 shall be initially applicable only to the Entertainment/Retail Component and the initial Phases of the Parking Component.   (d)                                 Procedures.  (i) Administrative Completeness.  The Developer shall have the right to submit to the Authority for administrative completeness, the aforementioned Master Plan requirements in four (4) distinct sets as follows: (A) Items No. 1, 2, 3, 5 and 11, (B) Items No. 4, 6, 7, 8, 9 and 10, (C) Items No. 12, 13, 14 and 15, and (D) Item No. 16.  Within ten (10) Business Days of submission by the Developer of one or more of the above-described submittals (A), (B), (C) and/or (D), those elements of the Master Plan will be reviewed by the Authority for administrative completeness to determine that the elements set out in the applicable Items (1) to (16), inclusive, above have been submitted and that the requirements of this Agreement have been addressed.  If the Master Plan set is deemed to be administratively complete, the Authority will notify the Developer in writing within such ten (10) day period and promptly commence review of the Master Plan set for technical completeness and acceptability, in accordance with the provisions of Section 6.2(d)(ii) below.  If the Master Plan set is deemed to be administratively incomplete, the Authority shall advise the Developer in writing, within ten (10) days of the Authority’s receipt of the Master Plan set, such notice to set forth a detailed explanation of the deficiencies.  In the event that the Master Plan set is deemed to be administratively incomplete, within ten (10) Business Days of receipt of the Authority’s notice, the Developer shall submit or resubmit such information as shall fully address the matters described in the Authority’s deficiency notice.  Thereafter, the Authority shall review such new information only (as opposed to additional review of previously submitted and accepted information) and shall complete such review of the Master Plan set within ten (10) Business Days following such submittal.  The foregoing procedures shall be repeated until such time as the Master Plan set is deemed to be administratively complete.   (ii)                                  Technical Completeness.  Within ten (10) Business Days after the Authority determines that the Master Plan set is administratively complete, the Authority shall review the documentation submitted in support of the Master Plan set to determine if the submitted Items of such Master Plan set are technically complete and to ensure that the requirements of this Agreement with respect thereto have been satisfied.  If the Master Plan set is deemed to be technically complete, the Authority shall notify the Developer in writing and shall thereafter immediately commence its substantive review, as provided in Section 6.2(e) below.  If the Master Plan set is deemed to be technically incomplete, the Authority will advise the Developer of such determination, in writing, within fifteen (15) Business Days of the receipt of an administratively complete Master Plan set.  Such notice shall set forth a detailed explanation of the deficiencies and any additional submittal requirements.  In the event that the Master Plan set is deemed to be technically incomplete, within fifteen (15) Business Days of receipt of the Authority’s notice, the Developer shall submit or resubmit such information as shall fully address the matters described in the Authority’s deficiency notice.  Thereafter, the Authority shall review new information only (as opposed to additional review of previously submitted and   31   accepted information or a previously approved Master Plan “set”) and shall complete such review of the Master Plan set within fifteen (15) Business Days following such submittal.  The foregoing procedures shall be repeated until such time as the Master Plan set is deemed to be technically complete.   (e)                                  Review and Approval of Master Plan.  (i) Within fifteen (15) Business Days of a determination that the submission of the Master Plan elements (1) to (16) are technically complete, the staff of the Authority shall either (A) determine that it will recommend to the Authority’s Board of Commissioners, subject to Section 6.2(e)(v) hereof, Approval of the Master Plan, or (B) disapprove the Master Plan.  If the Authority staff disapproves the Master Plan, the Authority staff shall advise the Developer of such determination, in writing within such fifteen (15) Business Day period (“Disapproval Notice”).  The Disapproval Notice shall set forth a detailed explanation of the reasons for such disapproval.   (ii)                                  In the event that the Authority staff disapproves the Master Plan, the Developer shall prepare and submit to the Authority for its Approval such additional information that addresses or responds to the deficiencies in the Master Plan and/or the reasons given by the Authority staff for its disapproval (“Resubmitted Master Plan Information”).  The Developer may, but shall not be required to, resubmit the Master Plan in its entirety in response to the Authority’s Disapproval Notice or, alternatively, the Developer may submit responsive information only.  In either event, the Authority shall only review and have a right to disapprove the Resubmitted Master Plan Information, except to the extent that an element of the Master Plan that was not previously deficient is materially and adversely affected thereby.   (iii)                               Following submittal of the Resubmitted Master Plan Information, the Authority staff shall, within fifteen (15) Business Days, either recommend Approval of or disapprove the Resubmitted Master Plan Information and such determination shall be set forth in writing.  If the Resubmitted Master Plan Information is recommended for Approval (as evidenced by a written notice from the Authority (the “Approval Notice”)), then the Master Plan shall be deemed to have been Approved by the Authority, as of the date of the Authority Board’s adoption of the staff recommendation of the Approval Notice.  If the Authority staff reasonably disapproves the Resubmitted Master Plan Information, the Parties shall follow the procedures set forth in this Section 6.2(e) until such time as the Authority Approves such Resubmitted Master Plan Information; provided however, if the Master Plan is not Approved within six (6) months following receipt of a determination that the Master Plan is technically complete, or the Developer believes that the Authority’s disapproval prior thereto is not in accordance with the standards set forth in Section 6.2(g) hereof, the Developer may dispute the Authority’s disapproval of the Master Plan and the provisions of Article 21 hereof shall apply.   (iv)                              If the scope of the Master Plan (whether initially or with respect to the Resubmitted Master Plan Information) creates a need for the Authority to seek outside consulting services, the time needed to secure such services shall not be included within the review periods set forth above, but shall be added thereto; provided however, that such review period extension shall not exceed thirty (30) Business Days.   32   (v)                                 The Parties acknowledge that the Master Plan and any Post-Approval Items that relate to a Major Modification requires a vote of the Authority’s Board of Commissioners.  As such, following receipt of the Authority staff’s recommendation regarding the Master Plan or the Major Modification, as the case may be, the Authority’s Board of Commissioners shall adopt or reject the staff recommendation within forty-five (45) days following issuance of the written notice advising the Developer that the Approval Notice has been sent to the Authority’s Board of Commissioners.  The Master Plan shall not be deemed approved by the Authority until approved by the legally binding vote of a majority of the Authority’s Board of Commissioners.   (vi)                              Any Post-Approval Item that does not constitute a Major Modification shall not require action by the Authority’s Board of Commissioners and shall be deemed to have been Approved by the Authority as of the date of written notice thereof to the Developer from the Authority’s President (or other authorized official).   (f)                                    Approval of Modifications to Master Plan.  (i) After the Master Plan is Approved, the Developer may request a modification of the Master Plan by submitting a revised Master Plan to the Authority.  In its submittal for Approval of a modification of the Approved Master Plan, the Developer shall (in the exercise of its reasonable discretion taking into account all relevant factors) characterize the proposed modification as either a Minor Modification or a Major Modification.  Any dispute over the characterization of a modification shall be resolved in accordance with the provisions of Article 21 hereof.  Any proposed amendment or modification of the Approved Master Plan (whether constituting a Minor Modification or Major Modification) (“Post-Approval Items”), shall be subject to the Authority’s Approval or disapproval, which shall not be unreasonably conditioned or delayed.  The Authority shall follow the procedures set forth in Section 6.2(d) and (g) in reviewing any Post-Approval Item (whether constituting a Minor Modification or a Major Modification).  The Authority agrees to Approve or disapprove any Post-Approval Items in writing to the Developer as soon as practicable but no later than thirty (30) days (in the event of Post-Approval Item that constitutes a Minor Modification) or sixty (60) days (with respect to any Major Modification) after receipt of such Post-Approval Item and all information that the Authority deems reasonably necessary to render an informed decision (the “Response Period”).  Post-Approval Items submitted hereunder shall contain in the cover letter, cover sheet, or top page, as applicable, a conspicuous statement that such Item is submitted for Approval under this Section 6.2(f) and that a response is required within thirty (30) days (for Minor Modifications) or sixty (60) days (for Major Modifications), as the case may be, of submittal.   (ii)                                  In the event that the Authority disapproves any such Post-Approval Item, the Authority agrees to notify the Developer in writing setting forth (in reasonable detail) the reasons for such disapproval and thereafter within five (5) days of such notice, the Authority shall confer (in person or by telephone) with the Developer to discuss the reasons for such response and how the Developer can address the Authority’s concerns.  The Developer shall thereafter prepare and submit to the Authority for its Approval such additional information that addresses or responds to the deficiencies in the Post-Approval Item and/or the reasons given by the Authority for its disapproval of the Post-Approval Item (“Resubmitted Post-Approval Item Information”).  The Developer may, but shall not be required to, resubmit the Post-Approval   33   Item in its entirety in response to the Authority’s Disapproval Notice or, alternatively, the Developer may submit responsive information only.  In either event, the Authority shall only review and have a right to disapprove the Resubmitted Post-Approval Item Information, except to the extent that an element of the Master Plan or any Post-Approval Item that was not previously deficient is materially affected thereby.   Post-Approval Item Information, the Authority shall either Approve or disapprove same in accordance with the standards set forth in Section 6.2(g) hereof.  If the Resubmitted Post-Approval Item Information is Approved (as evidenced by an Approval Notice), then the Master Plan shall be deemed to have been Approved by the Authority in its entirety as of the date of the Approval Notice.  If the Authority disapproves the Resubmitted Post-Approval Item Information, the Parties shall follow the procedures in this Section 6.2(f) until such time as the Authority Approves such Resubmitted Post-Approval Item Information; provided however, if the Resubmitted Post-Approval Item Information is not Approved within six (6) months following the original submittal by the Developer of the Post-Approval Item or the Developer believes that the Authority’s disapproval the Post-Approval Item in accordance with the provisions of Article 21 hereof.  In either event, the Authority shall only review and have a right to disapprove the Resubmitted Post-Approval Item Information, except to the extent that an element of the Master Plan, any Post-Approval Item or any Resubmitted Post-Approval Item that was not previously deficient is materially and adversely affected thereby.   (iv)                              The Parties shall use diligent and commercially reasonable efforts and endeavor in good faith to consult, cooperate and coordinate in an effort to streamline and expedite the Approval of any Post-Approval Item.   (g)                                 Standards of Review.  (i) Master Plan Review.  In connection with its review of the Master Plan or any Resubmitted Master Plan Information, the Authority may Approve or disapprove such submittal in its discretion, utilizing the standards of review applied by the New Jersey Superior Court, Appellate Division, to the review of final agency actions or determinations (i.e. arbitrary and capricious standard).  Such standards shall be applied to take into consideration the consistency of or conformance of the Master Plan or the Resubmitted Master Plan Information to the Project Components and Component Uses described in this Agreement and the Conceptual Site Plan.   (ii)                                  Post-Approval Items.  (A) Major Modifications.  In connection with its review of a Post-Approval Item or a Resubmitted Post-Approval Item that constitutes or relates to (as the case may be) a Major Modification, the Authority may Approve or disapprove such submittal utilizing the same standards of review set forth in Section 6.2(g)(i) above, but applied to determine whether the Post-Approval Item or Resubmitted Post-Approval Item is consistent with and conforms to the Approved Master Plan.   (B)                                Minor Modification.  In connection with its review of a Post-Approval Item or a Resubmitted Post-Approval Item that constitutes or relates to (as the case may be) a Minor Modification, the Authority may Approve or disapprove such submittal, in   34   the exercise of its reasonable discretion.  Such standards shall be applied to take into consideration the consistency of or conformance of the Post-Approval Item or the Resubmitted Post-Approval Item to the Approved Master Plan.   SECTION 6.3.  Effect of Authority Approval.  The review or Approval by the Authority of any matters submitted for its review or Approval shall not constitute a representation, warranty or guaranty by the Authority as to the substance or quality of the documents, work or other matter reviewed, approved or accepted.  At all times, Developer shall use Developer’s judgment as to the accuracy and quality of all such documents, work and other matters.  The final written Approval (including any Board Approval with respect to a Major Modification) by the Authority of any matter submitted for Authority Approval shall be final, binding and conclusive upon the Authority, and Developer shall be entitled to rely upon the Approval.   SECTION 6.4.  Developer Due Diligence.  (a) The Authority shall use diligent and commercially reasonable efforts to provide the Developer with such agreements, leases, maps, plans, reports, financial documents, financing documents and such other information and documents as the Developer may reasonably request in order to perform due diligence activities relating to the physical and environmental conditions of the Project Site, existing uses of and rights with respect to the Arena and the Sports Complex, the nature of the tax-exempt status of the Authority and the transaction contemplated herein, the Authority’s outstanding debt and other obligations and the existence of encumbrances on the Project Site (collectively, the “Due Diligence Documents”).  The Due Diligence Documents set forth on Schedule 6.4 hereto shall, to the extent available, be provided or otherwise made available to the Developer by the Authority at the earliest practicable date but in no event later than thirty (30) days following the Effective Date.  Any additional Due Diligence Documents shall be requested by the Developer in writing and shall be provided by the Authority within five (5) Business Days after its receipt of such request.  Not later than sixty (60) days after the date on which the Authority provides copies of the Due Diligence Documents, Developer shall inform the Authority in writing of any reasonable objections related to the Existing Sports Complex Agreements or the Settlement Agreement and discussions with the Borough described in Section 5.3 herein (collectively, such objections are hereinafter referred to as the (“Complex Agreement Objections”).  The Authority shall use all its diligent and commercially reasonable efforts, at the earliest practicable date but in no event later than sixty (60) days after the delivery of the Developer’s notice of the Complex Agreement Objections, to resolve any Complex Agreement Objections to the reasonable satisfaction of the Developer.  Without limitation, the reasonable efforts of the Authority shall include the commencement and diligent prosecution of negotiations with third party vendors taking by or through Existing Sports Complex Agreements to redefine, restrict or eliminate exclusives granted to such vendors which are inconsistent with the rights granted to the Developer hereunder including, but not limited to, those described in Section 20 herein.  Notwithstanding anything in this Agreement to the contrary, the Authority shall not be obligated to incur actual out-of-pocket expenses to “buy-back” rights granted under the Existing Sports Complex Agreements.  If any Complex Agreement Objections are not resolved to the Developer’s satisfaction within said 60-day period, then in that event, Developer shall have ten (10) Business Days in which to notify the Authority that Developer elects to either waive such remaining Complex Agreement Objections or terminate this Agreement and receive the Refundable Security Deposit and the amount paid under the Deposit Letter.  In the event that the   35   Developer waives such Complex Agreement Objections or is deemed to have waived by failing to notify the Authority within such ten (10) Business Day period, the Developer shall be deemed to have taken subject to those uncured Complex Agreement Objections.  If Developer terminates, the Refundable Security Deposit and the amount paid under the Deposit Letter shall be returned to Developer and the parties shall have no further rights, duties or obligations to each other hereunder (except those which expressly survive termination).   (b)                                 Notwithstanding anything contained in this Agreement to the contrary, the Authority has provided and will provide Due Diligence Documents for informational purposes only and provision of such Due Diligence Documents shall not constitute a representation, warranty or guaranty as to the substance or quality of the Due Diligence Documents (other than that such Documents are, to the best of the Authority’s knowledge, after reasonable inquiry, true, accurate and current copies of such Due Diligence Documents in possession of the Authority).  The Developer and Project Professionals shall not rely upon such Due Diligence Documents but rather shall use their own judgment as to the sufficiency or quality of such Due Diligence Documents.   SECTION 6.5.  No Liens.  Except as is contemplated hereunder or in the Ground Lease (or any Component Lease), the Developer, in the performance of its obligations under this Agreement shall exercise diligent and commercially reasonable efforts to not permit any lien to cause a Material Adverse Effect on the Authority’s interest in the Sports Complex.  In the event that a lien is caused by or arises out of Developer’s activities at the Project Site, thereby causing a Material Adverse Effect on the Authority’s interest in the Sports Complex, Developer shall use all commercially reasonable efforts to discharge, insure over or bond over such lien as soon as is reasonably and commercially practicable.  Moreover, if, in the Authority’s reasonable judgment, a lien has (or would have, if not discharged, insured over or bonded over) a Material Adverse Effect on the Authority if not discharged, insured over or bonded over, the Authority shall provide written notice to the Developer of such determination, including the basis or reasons for the Authority’s determination and Developer shall immediately take all steps necessary to cause such lien to be removed by the payment of money or bonded by financial security reasonably acceptable to the Authority.   ARTICLE 7 PROJECT APPROVALS   SECTION 7.1.  Development Approvals.  (a) Authority Review and Approval.  Developer shall exercise its diligent and commercially reasonable efforts to obtain Development Approvals for construction of the Project, in accordance with this Agreement and the Project Agreements.  Procurement of the Development Approvals shall be at the Developer’s sole cost and expense, with the exception of those permits necessary for Remediation related to the Authority’s Environmental Responsibility.  Developer shall timely prepare such necessary reports, studies, schematic documents, design development documents, and construction documents as provided herein required for the issuance of the Development Approvals (“Development Approval Documents”).  A copy of the relevant Development Approval Documents shall be promptly provided to the Authority.  If such Development Approval   36   Document is presented to the Authority for approval or signature, either because it deviates from the Conceptual Site Plan (or the Approved Master Plan, if applicable) or the Developer requests that the Authority execute as co-permittee, then, the Authority shall provide its Approval, disapproval or signature to the Developer within five (5) Business Days of receipt of Development Approval Document(s) unless such other time period is designated under Section 11.6 hereof.  If the Authority disapproves, it shall state its reasons therefor.  The foregoing shall not limit or diminish the Authority’s rights of review provided under Section 6.2 hereof with respect to modifications of the Approved Master Plan.  In the event that the Authority fails to provide its Approval, disapproval or signature within such period, the Developer may (to the extent that the Authority’s signature is not required as a condition of such submittal) submit such documentation to the appropriate regulatory agency without Authority comment or Approval.  In the event that the Authority’s signature is required as a condition to such submittal, the Authority hereby consents to the submission of such documentation and shall execute the appropriate application or submittal documentation, notwithstanding that the Authority has failed to provide its Approval, disapproval or signature within the applicable review period (and such consent shall be equally applicable to any resubmission, as herein contemplated, if the Authority fails to provide its Approval, disapproval or signature within the applicable review period).  Upon any resubmission of Development Approval Documents, the Authority shall review only those elements of the Development Approval Documents that the Authority has not previously reviewed; provided however, that if the elements of the Development Approval Documents that are resubmitted are integrally and inseverably related to elements of the Development Approval Documents previously reviewed by the Authority, the Authority may include within the scope of its review of any resubmission elements previously reviewed.  All submissions and responses hereunder shall be made through the respective Designated Representatives of the Authority and the Developer.   (b)                                 No Warranty.  The review, comment, approval or acceptance by or on behalf of the Authority of any Development Approval Document or any other work, plans, budget or schedule shall not constitute a representation, warranty or guaranty by the Authority as to the substance or quality of the documents, work or other matter reviewed, approved or accepted.  At all times, Developer and the Project Professionals shall use their own judgment as to the accuracy and quality of all such documents, work and other matters.  The Authority shall use commercially reasonable efforts to cause its professionals and consultants to add the Developer as an additional named insured on any errors and omissions and/or professional liability insurance policies provided to the Authority by such professionals and/or consultants.   (c)                                  Copies of Submissions.  The Developer and the Authority shall each exercise diligent and commercially reasonable efforts to provide to the other Party a complete copy of each and every application for Development Approvals submitted by Developer or the Authority, as the case may be, to Governmental Bodies, which copy shall be provided substantially at the same time as those applications are submitted to those agencies.   (d)                                 Cooperation with Governmental Officials.  In connection with obtaining the Development Approvals, the Developer shall cooperate with all federal, State, and local officials, including but not limited to the NJDEP and the NJMC.   37   (e)                                  Authority Cooperation.  The Authority shall use diligent and commercially reasonable efforts to cooperate with the Developer in obtaining the Development Approvals and, to the extent reasonably determined by the Authority and reasonably agreed to by the Developer, may join in applications for the Development Approvals; provided however, that (i) the Authority shall not be required to incur any out-of-pocket cost or expense in joining in such applications absent the Developer’s agreement to reimburse the Authority for such costs or expenses, and (ii) the Authority shall not be required to take any action that, in the reasonable judgment of the Authority, constitutes an ultra vires act or will cause a breach or default under any Sports Complex Agreement.  Notwithstanding the foregoing, the Development Approvals for which the Authority shall be a co-applicant or co-permittee are set forth on Schedule 8.2(b) hereto.   (f)                                    Assignment Upon Termination.  In the event that this Agreement is terminated by either the Authority or Developer, upon the written request of the Authority, Developer shall, as soon as reasonably possible, assign or cause to be assigned to the extent permitted by law any or all of the Development Approvals obtained by Developer or an assignment of any pending applications in form sufficient to permit the Authority to continue the application process for any pending Development Approvals.  Assuming that there has been no Developer Event of Default and that this Agreement has not been terminated by reason of such Developer Event of Default, the assignment by Developer hereunder may be conditioned upon the express written condition that the Authority assumes financial obligations under the applicable Development Approvals or applications therefor, including payment or reimbursement of all reasonable out-of-pocket costs and expenses associated with preparation and processing of Development Approvals or pending applications.  Such assignment shall be without recourse, representation or warranty of any nature, express or implied.   (g)                                 Indemnity.  In amplification, and not in limitation, of the Developer’s indemnification obligations set forth in Section 17.6(a) hereof, in the event Authority agrees to act as an applicant or co-applicant for any Development Approval, the Developer shall indemnify, protect, defend and hold harmless the Authority from and against any Developer Indemnified Claim; provided however, that the provisions of Section 17.6(a) hereof shall not be applicable to any claim of an Authority Indemnified Party if such claim arises out of or relates to (i) Remediation relating to the Authority’s Environmental Responsibility, or (ii) any violation of a Development Approval, to the extent that such violation was caused by the action(s) or inaction(s) of the Authority or any Authority Indemnified Party.   SECTION 7.2.  NJDEP/NJMC Consultation.  Developer acknowledges that pursuant to the Enabling Legislation, the NJDEP and NJMC have certain review rights as to the Project that require one or more public hearings before the NJDEP and NJMC.  Concurrently with preparation of applications for Development Approvals as provided in Section 7.1 hereof, the Parties shall present the Project to the NJDEP and NJMC in a timely fashion for review in accordance with the Enabling Legislation.   38   ARTICLE 8 GROUND LEASE CLOSING; MATERIAL CONDITIONS   SECTION 8.1.  Development Covenant.  In consideration for the Authority’s grant of exclusive development rights hereunder and conveyance of, among other things, the leasehold estate in the Project Site and the full and prompt performance of its obligations under this Agreement and the Project Agreements, subject to the provisions of this Agreement, the Developer shall (a) diligently pursue the design, permitting and construction of Phase I and Phase II, as provided under the terms of this Agreement, (b) until and if released, perform and observe the terms and conditions of this Agreement, as herein provided, and (c) make payment of the Development Rights Fee and the applicable Ground Rent, as provided in this Agreement and the Ground Lease; provided however, the failure to construct the Hotel Component and/or the Office Component (or any Phase incorporating such Components) shall not invalidate or otherwise affect the obligations of the Parties hereunder and/or the sufficiency of consideration for this Agreement and shall not constitute a Developer Event of Default hereunder or under the Ground Lease.   SECTION 8.2.  Satisfaction of Material Conditions; Termination.  (a) If, after the exercise of all good faith, diligent and commercially reasonable efforts by each Party, any of the following conditions (the “Material Conditions”) are not satisfied on or prior to March 31, 2005  (the “Material Conditions Termination Date”), subject to application of the provisions of Sections 8.3 and 8.4 hereof, either of the Parties may elect no later than the Material Conditions Termination Date to terminate this Agreement by written notice to the other, in which event, this Agreement shall be terminated as of the date of such notice and all obligations of the Parties hereunder shall cease and all claims that the Parties may have shall be deemed to have been forever waived (except such obligations as are specifically stated in this Agreement or which by their nature are intended to survive termination and any claims arising in connection with such obligations).  Upon termination of the Agreement for failure to satisfy the Material Conditions, the Refundable Security Deposit and the amount paid to the Authority under the Deposit Letter shall be promptly returned to the Developer.   (b)                                 The following shall constitute the Material Conditions:   (i)                                     All Development Approvals required for the Project, as set forth on Schedule 8.2(b) hereof and such other permits, licenses or approvals that are determined to be required following the Effective Date, shall have been obtained, shall be in form and content reasonably acceptable to the Developer, shall be in full force and effect and all applicable appeal periods shall have expired without an appeal being filed, or, if an appeal has been filed, that such appeal has been decided by issuance of a final non-appealable order or decision by a court of competent jurisdiction upholding and affirming the validity of the Development Approval(s) that is the subject of such appeal and/or if any such appeal period has not expired, such pending appeal cannot, in the reasonable judgment of the Parties, be resolved in a manner preventing construction and operation of the Project substantially in the manner contemplated by the Development Approvals, this Agreement or the Master Plan.   (ii)                                  An agreement effectuating the provisions of Section 5.3(b) hereof shall have been reached with the Borough of East Rutherford or the Authority (in the exercise of its sole discretion) shall have executed an agreement with the Developer in form and substance acceptable to Developer in its sole discretion that holds the Developer harmless with respect to   39   any future challenge by constituent municipalities and/or counties for payments to and/or the imposition of real property taxes or assessments in excess of the Developer PILOT Payments by the State of New Jersey, the Authority or any municipality in which the Meadowlands Complex is located based upon use of the Project Site by the Developer substantially in the manner contemplated in this Agreement and the Master Plan.   (iii)                               All administrative proceedings which are required in order to carry out the Project, as contemplated by this Agreement and the Master Plan, shall have been completed, and all other actions, hearings, proceedings or determinations required to be taken, held and/or rendered, as the case may be, by the Authority, the NJDEP, the NJMC and/or any other agency or authority in order for the Project to be constructed and operated in the manner contemplated by the Master Plan shall have been undertaken and completed and a favorable determination rendered so as to permit construction and operation of the Project, as reflected in the Master Plan.  An order(s) or finding(s), as applicable, shall have been issued, such order or finding determining that the Project to be constructed on the Project Site, as described in the Master Plan and this Agreement, is approved and that the Project proposed to be constructed complies with or is consistent with all planning, land use and/or environmental requirements applicable to the Meadowlands Complex and/or the Project Site.  Such order, finding and/or resolution evidencing such Approval shall be in full force and effect and all applicable appeal periods shall have expired without an appeal being filed, or, if an appeal has been filed, that such appeal has been decided by issuance of a non-appealable order or decision of a court of competent jurisdiction upholding and affirming the validity of the order(s) or finding(s) or resolution(s) that is the subject of such appeal or if any such appeal has not been decided, such pending appeal cannot, in the reasonable judgment of the Parties, be resolved in a manner preventing or materially affecting construction and operation of the Project substantially in the manner contemplated by the Development Approvals, this Agreement or the Master Plan.   (iv)                              The Master Plan shall have been Approved by the Authority and such order, finding and/or resolution evidencing such Approval shall be in full force and effect and all applicable appeal periods shall have expired without an appeal being filed, or, if an appeal has been filed, that such appeal has been decided by issuance of a non-appealable order or decision of a court of competent jurisdiction upholding and affirming the validity of the order(s) or findings(s) that is the subject of such appeal or if such appeal has not been decided, such pending appeal cannot, in the reasonable judgment of the Parties, be resolved in a manner preventing or materially affecting construction or operation of the Project substantially in the manner contemplated by the Development Approvals, this Agreement or the Master Plan.   (v)                                 The Developer shall have received all easements, rights of access, licenses and other rights and/or the termination or modification of existing easements, rights of access, licenses and other rights reasonably required in order to permit use and operation of the Project Site in the manner contemplated by this Agreement, the Ground Lease, the Master Plan, the Development Approvals and the Project Agreements (subject only to the Permitted Exception(s)) and such easements, rights of access, licenses and other rights and/or modifications or terminations shall be in form and content reasonably acceptable to the Developer and its Project Lenders, and shall be in   40   (vi)                              All (A) WMB Approvals shall have been obtained and shall be in full force and effect and all applicable appeal periods shall have expired without an appeal being filed, or, if an appeal has been filed, order(s) or finding(s) that is the subject of such appeal and/or if any such appeal period has not expired, such pending appeal cannot, in the reasonable judgment of the Parties, be resolved in a manner preventing effectuation of the Wetlands Mitigation Bank and the license to operate same by the Developer, and (B) actions required to be taken in order to permit the Developer to effectuate the Wetlands Mitigation Bank (in the manner contemplated by Section 3.5 hereof) and the WMB Approvals, including execution of any applicable agreements related thereto (as provided in Section 3.5(b) hereof), including the MIMAC Agreement, shall have been completed.  The form and content of such WMB Approvals shall be acceptable to the Developer (in the exercise of its sole discretion).   (vii)                           No litigation shall be outstanding (including without limitation, the potential for appeals from previously issued decisions or orders for which the appeal period shall not have expired) against or affecting the Authority (A) challenging the validity of this Agreement, the Ground Lease, the Project Agreements and/or the Authority’s legal right and power to enter into same or to carry out the transactions contemplated herein, or (B) which precludes, hinders, inhibits or limits (or could in the reasonable judgment of the Developer and/or the Authority preclude or limit) the ability of the Authority and/or the Developer to satisfy the Material Conditions and/or carry out the transactions contemplated by this Agreement, the Ground Lease, the Project Agreements, the Master Plan, the Wetlands Mitigation Bank (as provided in Section 3.5 hereof) and/or the Development Approvals.   (viii)                        All Title Objections which are not Permitted Exception(s) pursuant to the provisions of Section 4.2 hereof shall have been discharged or otherwise satisfied or arrangements mutually satisfactory to the Parties for discharge at the Ground Lease Closing shall have been made to the satisfaction of the Developer and the Project Lenders.   (ix)                                Mutually satisfactory forms of Ground Lease, Project Operating Agreement, the Construction Management Agreement and the Declaration shall have been agreed upon by the Parties.   (x)                                   A Project Labor Agreement (in form and content satisfactory to the Developer in the exercise of its sole discretion) shall have been executed with the Bergen County Building and Construction Trades Council covering, among other things, the terms and conditions under which construction of the Project will be carried out through the use of persons or firms that recognize established Bergen County collective bargaining units.   (xi)                                A.  The Parties shall have reached agreement as to (i) the Traffic and Infrastructure Improvements and the reasonably estimated costs thereof to be credited against the Traffic and Infrastructure Cap Amount, and (ii) the amount, if any, of the projected Unspent Traffic and Infrastructure Amount.  In the event that such estimated costs of the Traffic and Infrastructure Improvements are projected to exceed Sixty Eight Million Two Hundred Fifty Thousand Dollars ($68,250,000), the Parties shall work cooperatively (and in conformance with   41   Section 3.3(e)(i) hereof) to reduce the scope of the Traffic and Infrastructure Improvements so that the projected costs of such Improvements do not exceed the Traffic and Infrastructure Improvement Cap Amount, as long as such change in scope (A) will not adversely impact any Development Approval, (B) will not cause any reduction in the size of the Project (or any Component) or change the Component Uses, or (C) will not materially and adversely reduce the level of road service currently provided at the Sports Complex or that is anticipated to be required to serve the Completed Project and Sports Complex.  Any dispute with respect to the applicability of such criteria shall be resolved in accordance with the provisions of Article 21 hereof.  If the amount by which the estimated costs of the Traffic and Infrastructure Improvements exceeds the Traffic and Infrastructure Improvement Cap Amount is less than or equal to Three Million Two Hundred Fifty Thousand Dollars ($3,250,000), the Authority shall be obligated to pay for such excess costs (the “Authority Traffic and Infrastructure Payment Amount”).  In such event, this Material Condition shall be deemed to have been satisfied.   B.  Notwithstanding anything contained herein to the contrary, if the estimated costs of the Traffic and Infrastructure Improvements exceeds Sixty Eight Million Two Hundred Fifty Thousand Dollars ($68,250,000), and the Authority has not paid (or has determined that it will not pay towards such costs, having no obligation to do so) amounts in excess of Three Million Two Hundred Fifty Thousand Dollars ($3,250,000), the Authority may terminate this Agreement and, in such event, shall not be required to pay the Authority Traffic and Infrastructure Payment Amount or any amount in excess thereof; provided however, that, Developer may proceed in accordance with Section 8.4(c) hereof and in such event, the Authority shall be obligated to pay the Three Million Two Hundred Fifty Thousand Dollars ($3,250,000) as provided in Section 3.3(d)(i) for payment of the Authority Traffic and Infrastructure Payment Amount to the Developer and this Material Condition shall be deemed to have been satisfied.   SECTION 8.3.  Limited Extension of Material Conditions Termination Date.  (a) The Material Conditions Termination Date may be extended by one day for each day after March 31, 2005 that any litigation instituted and continued by a third party challenging this Agreement, the Ground Lease, the ability or power of the Authority to undertake and carry out the transactions contemplated by this Agreement, the Ground Lease or the Project Agreements, or implementation of the Wetlands Mitigation Bank (as provided in Section 3.5(b) hereof), or challenging any Development Approval or other approval or action issued, adopted or taken by the Authority, the NJDEP, the NJMC or any other regulatory agency having jurisdiction over the Project or the Project Site, or any portion thereof, or implementation of the Wetlands Mitigation Bank, which litigation could reasonably be anticipated to have a Material Adverse Effect, has not been conclusively adjudicated.   (b)                                 In the event that the Material Conditions Termination Date shall be extended by reason of the application of this Section 8.3 until March 31, 2008 (the “Outside Material Conditions Termination Date”), then either Party shall have the right at any time after the Outside Material Conditions Termination Date (but prior to the conclusive adjudication of those actions described in the first sentence of this Section 8.3) to terminate this Agreement by written notice, and upon any such termination the Refundable Security Deposit and the amount provided under the Deposit Letter shall be returned to Developer, and each Party shall be   42   released  from any further obligations hereunder, except as expressly provided herein to the contrary.   SECTION 8.4.  Limited Waiver of Material Conditions.  (a) In the event that the Authority has exercised its rights to terminate this Agreement for the failure to satisfy the Material Conditions, the Developer shall have the right to waive any Material Conditions remaining to be satisfied and such waiver shall be deemed to constitute a rescission of the Authority’s termination notice; provided however, the Developer shall not be permitted to waive the Material Conditions described in Section 8.2(ii), (ix) and, to the extent provided therein, (xi).  The Developer’s determination to waive any Material Conditions shall be set forth in writing and provided to the Authority on or prior to the date that is ten (10) days after the Authority’s delivery of notice of termination to the Developer.  In such event, the Material Conditions shall be deemed to have been satisfied as of the date of the Developer’s waiver of such remaining Material Conditions and the Ground Lease Closing Date shall be established in accordance with the provisions of Section 9.1 hereof.   (b)                                 Notwithstanding the foregoing, if the Material Condition described in Section 8.2(b)(iv) has not been satisfied on or prior to the Material Conditions Termination Date, the Developer may waive the satisfaction of such Material Condition.  However, in such event the Authority’s review and Approval of the Master Plan shall be governed by the provisions of subparagraphs (a), (b), (c), (d), (e) and (g) but not (f) of Section 6.2 hereof.   (c)                                  In the event that the Authority has exercised its rights to terminate this Agreement as a result of the failure to satisfy the Material Condition described in Section 8.2(b)(xi) of Section 8.2, the Developer may override such determination by providing written notice to the Authority (not later than ten (10) days after receipt of Authority’s termination notice, of its decision to relieve the Authority from any obligation with respect to payment of any amount in excess of the Authority Traffic and Infrastructure Payment Amount.  In such event, said Material Condition shall be deemed to have been satisfied on or prior to the Material Conditions Termination Date.   SECTION 8.5.  Access to the Project Site.  The terms and conditions of access to the Sports Complex (including the Project Site) by the Developer prior to the Ground Lease Closing Date shall be governed in all respects by the Access and Indemnity Agreements.   ARTICLE 9 GROUND LEASE; COMPONENT LEASES   SECTION 9.1.  Execution of Ground Lease.  (a) (i) On or prior to the one hundred fiftieth (150th) day following satisfaction or waiver (to the extent waivable hereunder) by the Developer of the Material Conditions set forth in Section 8.2 hereof (or such earlier date as  provided below), the Authority and the Developer will enter into the Ground Lease and record a memorandum or short form of the Ground Lease.   (ii)                                  The form of Ground Lease is currently under negotiation by the Authority and the Developer.  The Parties shall endeavor in good faith to negotiate a final form   43   of the Ground Lease in accordance with the term sheet attached hereto as Exhibit “B” (the “Ground Lease Term Sheet”) within ninety (90) days following the Effective Date.  Unless otherwise agreed to by the Parties, the final form of Ground Lease shall not materially deviate from the substantive financial terms reflected in the Ground Lease Term Sheet and shall not materially increase any obligation to be performed by the Parties or materially limit or diminish any rights held by the Parties, in each case, as compared to the obligations and/or rights reflected in the Ground Lease Term Sheet.  As soon as the form of Ground Lease has been mutually agreed to, the Parties shall initial the form and attach same hereto as Exhibit “B-1” at which time Exhibit “B” will be incorporated therein and superceded by Exhibit “B-1”.  From and after such date, the Ground Lease Term Sheet shall be of no force or effect.  In addition, the Parties acknowledge that the form of Ground Lease shall be subject to review and may be subject to comment and modification at the request of Project Lenders.  The Authority shall cooperate with the Developer in addressing the requests of the Project Lenders, subject to the provisions of this Section 9.1(a)(ii).   (b)                                 Notwithstanding anything contained herein to the contrary, at any time after satisfaction or waiver of the Material Conditions (other than the Material Conditions set forth in subparagraphs (ii), (ix) and, to the extent provided therein, (xi) of Section 8.2(b) hereof, each of which may not be waived by the Developer without the prior written consent of the Authority which may be provided or withheld in its sole discretion), the Parties may determine that the Ground Lease Closing Date shall occur prior to expiration of the one hundred fifty (150) day period provided in Section 9.1(a)(i) above and, in such event, the Ground Lease Closing Date shall be the date determined by the Developer and the Authority.   SECTION 9.2.  Conditions Precedent to Ground Lease Closing.  Prior to entering into the Ground Lease and commencement of construction of the Project, each of the following conditions precedent shall have been satisfied by the Developer or the Authority, as the case may be.   (a)                                  No Event of Default.  No Developer Event of Default or Authority Event of Default hereunder or under any of the Project Agreements (i.e. event of default under any Access and Indemnity Agreement) nor any event that with the passage of time or delivery of notice or both, could constitute a Developer Event of Default or Authority Event of Default, as the case may be, hereunder or under any of the Project Agreements shall have occurred and be continuing (subject to a Party’s cure rights, as provided herein), and an Authorized Representative of the Developer shall have delivered to the Authority a written certificate to such effect and an Authorized Representative of the Authority shall have delivered a written certificate to the Developer to such effect.   (b)                                 No Proceedings.  No action, suit, proceeding or investigation of any kind shall have been instituted or, to the Developer’s or Authority’s knowledge, pending or threatened by any third party, including actions or proceedings of or before any Governmental Body to which the Authority, the Developer or the Project (or any Component thereof) is a party or is subject or by which any of them or the Project are bound or can reasonably be expected to have a Material Adverse Effect, no injunction or other restraining order shall have been issued and no hearing to cause an injunction or any restraining order to be issued shall be pending or noticed   44   with respect to any action, suit or proceeding if the same reasonably could be   (c)                                  Financial Condition.  Since the Effective Date, there shall not have occurred any change in the financial condition, business or property of the Developer, Mills or Mack-Cali that could reasonably be expected to have a Material Adverse Effect, and an Authorized Representative of the Developer shall have delivered a written certificate to the Authority to such effect.   (d)                                 Insurance.  The Developer and the Authority shall each have delivered evidence that insurance coverage complying with the terms of the Project Agreements shall be in place and in full force and effect.   (e)                                  Representations and Warranties.  Each representation and warranty of the Developer and the Authority provided herein or in any other Project Document shall be true and correct in all material respects as if made on such date (except that any representation and warranty that relates expressly to an earlier date shall be deemed made only as of such earlier date) and to the Developer’s and/or the Authority’s knowledge, as the case may be, unless failure of any such representation or warranty to be true and correct could not reasonably be expected to have a Material Adverse Effect, in each case, as certified by an Authorized Representative of the Developer in a written certification to the Authority (as to representations and warranties of the Developer) and as certified by an Authorized Representative of the Authority in a written certification to the Developer (as to representations and warranties of the Authority).   (f)                                    Further Assurances.  The Parties shall have delivered such other documents, certificates, agreements or other materials as the Parties may reasonably request.   SECTION 9.3.  Ground Lease Closing.  (a) Developer Deliveries. At the Ground Lease Closing, the Developer shall deliver the following items, validly executed and attested, acknowledged and/or notarized as appropriate: (i) the Ground Lease, subject only to the Permitted Exception(s) in accordance with Section 4.2 hereof and, including without limitation, the Declaration, (ii) a certificate stating and reaffirming in all material respects the representations and warranties of the Developer set forth in this Agreement (including without limitation, Section 16.1 hereof), effective as of the Ground Lease Closing Date, (iii) such evidence of the legal right and power of the Developer to enter into and effectuate the transactions contemplated in this Agreement, the other Project Agreements and the Ground Lease and of the due authorization of the persons acting on behalf of the Developer with respect hereto as the Authority or the Title Insurer may reasonably request, (iv) subject to such exclusions as are reasonably warranted by the Project Litigation and other customary exclusions, an opinion of legal counsel in form and substance and rendered by counsel to the Developer reasonably acceptable to the Authority (A) as to the matters referred to in clause (iii) above, and (B) that all instruments, documents or other writings executed by the Developer in connection with the Ground Lease Closing (including specifically, and without limitation, the Ground Lease) are valid, effective and enforceable in accordance with their respective terms, (v) evidence in form and substance satisfactory to the Authority that all insurance required to be provided by the Developer pursuant to the Project Agreements has been provided and remains in   45   full force and effect, (vi) such other documents and instruments that are reasonably requested to consummate the conveyance of the leasehold estate in the Project Site from the Authority to the Developer, provided that such documents and instruments are consistent with the Parties’ intent as expressed in this Agreement, do not have a Material Adverse Effect and are within the powers of the Authority under applicable law, and (vii) payment of the Development Rights Fee less any adjustments, offsets or credits expressly provided hereunder.   (b)                                 Authority Deliveries. At the Ground Lease Closing, the Authority shall deliver the following items, validly executed and attested, acknowledged and/or notarized as appropriate: (i) the Ground Lease, subject only to the Permitted Exception(s) in accordance with Section 4.2 hereof and the Declaration, (ii) such affidavits as may be reasonably requested by the Title Insurer, including but not limited to mechanics’ liens and parties in possession (provided that, without limitation, the Authority may exclude from its affidavit any claim arising from the actions of the Developer or any person claiming through or under the Developer, or acting on the Developer’s behalf), (iii) a certificate stating and reaffirming in all material respects the representations and warranties of the Authority set forth in this Agreement (including specifically, and without limitation, Section 16.2 hereof), effective as of the Ground Lease Closing Date, (iv) such evidence of the legal right and power of the Authority to enter into and effectuate the transactions contemplated in this Agreement and of the due authorization of the persons acting on behalf of the Authority with respect hereto as the Developer or the Title Insurer may reasonably request, (v) subject to such exclusions as are reasonably warranted by the Project Litigation and other customary exclusions, an opinion of legal counsel in form and substance and rendered by counsel to the Authority reasonably acceptable to the Developer (A) as to the matters referred to in clause (iv) above, and (B) that all instruments, documents or other writings executed by the Authority in connection with the Ground Lease Closing (including specifically and without limitation, the Ground Lease) are valid, effective and enforceable in accordance with its terms, and (vi) evidence in form and substance satisfactory to the Developer that all insurance required to be provided by the Authority pursuant to the Project Agreements has been provided and remains in full force and effect and (vii) such other documents and instruments that are reasonably requested to consummate the conveyance of the leasehold estate in the Project Site from the Authority to the Developer, provided that such documents and instruments are consistent with the Parties’ intent as expressed in this Agreement, do not have a Material Adverse Effect and are within the powers of the Authority under applicable law.   SECTION 9.4.  Component Parts; Component Entities; Component Leases; Component Agreements.  (a) The Parties acknowledge and agree that following the execution of the Ground Lease (or simultaneously therewith) the Developer shall segregate the Project Site into multiple components comprising each of the Office Component, Parking Component, Hotel Component and Entertainment/Retail Component to be Controlled by Developer or Permitted Transferees.  In furtherance of the foregoing, Project Components and Project Site Components (and the related rights appurtenant thereto) may, upon written notice to the Authority, but at the sole discretion of the Developer in the exercise of its reasonable business judgment, be divided into further component parts in accordance with the terms of this Agreement (each, a “Component Part”  and collectively, the “Component Parts”) (which Component Parts may be smaller than a Project Component or Project Site Component but a single Component Part shall not include portions of more than one Project Component or Project Site Component).  The   46   segregation of the Project Site into Component Parts shall be set forth in an updated Project Sequencing Plan furnished to the Authority in accordance with Section 3.2(b) hereof.   (b)                                 Component Interests.  Subsequent to execution of the Ground Lease (or simultaneously therewith) and subject to Article 14, Developer (or a Transferee) may convey its interest in the development rights granted hereunder relating to the development of a Project Component and/or Project Site Component and/or Component Part (each, a “Component Interest”) to a Component Entity, and a Component Entity may convey such Component Interest (or portion thereof constituting a Component Part) to another Component Entity.  Simultaneously with such conveyance and as a condition thereto, the Authority and the Component Entity shall enter into a Component Agreement and Component Lease in form and substance reasonably satisfactory to the Component Entity and to the Authority and Developer as set forth in Section 9.4(e)(i) below.  The rights and obligations of a Component Entity with respect to a Component Interest shall be as set forth in the applicable Component Agreement and Component Lease and there shall be no provision for cross-defaults or cross-collateralization among Component Agreements, Component Leases, the Ground Lease or this Agreement (i.e. a default by a Component Entity under a Component Agreement or Component Lease shall have no effect on the rights or obligations of any other Component Entity under any other Component Agreement or Component Lease or on the rights and obligations of the Developer under this Agreement, Ground Lease and Project Agreements and vice-versa); provided however, that the Component Agreement and Component Lease for each separate Project Component or Component Part shall provide that, an event of default under that Component Lease shall constitute an event of default under the corresponding Component Agreement and vice-versa.   (c)                                  Component Entities.  The organization, form and ownership structure of a Component Entity (i.e. partnership, limited partnership, limited liability company, condominium association, etc.) shall be determined by the Developer in its sole discretion in the exercise of its reasonable business judgment so as to effectuate the ownership, financing, construction, operation, use and occupancy of an applicable Component Interest.  The Developer shall be permitted to apply multiple forms of ownership, means of control and/or management structures to effectuate the Project in the most efficient and cost-effective manner possible that Developer deems appropriate.  The Developer shall provide the Authority with a written summary of the organizational/corporate management and ownership structure of each Component Entity.  Notwithstanding anything herein to the contrary, following execution and delivery of Component Agreements and Component Leases by the Component Entity(ies) responsible for performance of the obligations relating to the Office Component and/or the Hotel Component or phases thereof and the Authority, this Agreement and the Ground Lease shall thereafter be applicable solely to the balance of the Project.   (d)                                 Limited Release.  Notwithstanding any provision of this Agreement to the contrary, from and after the date that a Component Agreement, Component Lease and the Transfer Documents or other documents and instruments required to be provided under Article 14 hereof are executed and delivered by a Component Entity and the Authority, the Developer’s obligations under this Agreement with respect to the applicable Component Interest, to the extent that such obligations accrue from and after such execution, delivery and approval, shall terminate.  Developer’s obligations accruing prior to such execution, delivery and approval shall   47   survive.  None of the assets or interests of Developer or any Component Entity shall be pledged as security for any of the obligations of any other Component Entity.  From and after such date, the rights and obligations of the Authority with respect to such Component Interest shall be governed solely by the Component Agreement and the Component Lease, as the case may be, and the Authority shall look solely to the applicable Component Entity (and shall have no recourse to or against the Developer).   (e)                                  Component Agreements.  (i) Except as otherwise reasonably required to effectuate the financing of the Project and the rights of the Project Lenders related thereto, any Component Lease or Component Agreement shall (A) contain substantially the same terms and conditions as the Ground Lease and this Agreement, respectively, (B) shall not materially modify the rights or obligations of the Parties under the terms of the Ground Lease and this Agreement, respectively, with respect to any obligations that are not covered by the Component Lease and Component Agreement and from which the Parties have not otherwise been released, and (C) shall not release or discharge a Party from its performance under the Ground Lease and this Agreement, respectively, with respect to any obligations which are not covered by the Component Lease and Component Agreement and from which such Party has not otherwise been released.   (ii)  At least fifteen (15) days prior to the date on which Developer desires Authority to execute any Component Lease and Component Agreement, the Developer shall provide a copy of same to the Authority.  The Authority’s review shall be limited to the provisions of (A), (B) and (C) in Section 9.4(e)(i) above.  If the Authority disputes any matter contained within (A), (B) or (C) and such dispute cannot be resolved within thirty (30) days, the provisions of Article 21 hereof shall apply.  If the Authority fails to approve or properly dispute such Component Lease and Component Agreement within said fifteen (15) day period, the Component Lease and Component Agreement shall be deemed approved and the Authority shall be obligated to execute such Component Lease and Component Agreement.   (f)                                    Application to Component Entities and Component Leases.  The provisions of Section 9.2 and Section 9.3 hereof shall be applicable to each Component Entity as to each Component Lease and Component Agreement executed and delivered from and after the Ground Lease Closing Date and the conditions precedent to the execution and delivery thereof shall be satisfied as of each date of execution of a Component Lease and Component Agreement.   (g)                                 Direct Leases.  Subject to Article 14, Developer shall also have the right to enter directly into a Component Lease with a Permitted Transferee or a Transferee.  In such event, execution of a Component Agreement shall not be required; however, the execution of a Component Lease in such circumstance shall not release Developer from any of its obligations under this Agreement or the Ground Lease.   SECTION 9.5.  Certificate of Completion.  (a) Certificate of Completion of Construction.  Anytime after the occurrence of (i) completion of the “core and shell” construction of a Project Component or Component Part, (ii) issuance of a Project Certificate of Occupancy for such Component or Component Part by an appropriate Governmental Body (or such similar or equivalent written determination issued by DCA), (iii) the Component or   48   Component Part is open for use by the general public, and (iv) a certification by the Developer stating that the applicable Project Component has been substantially completed in accordance with the Plans and Specifications and the Development Approvals relating to such Component, Developer shall provide written notice thereof to the Authority.  Following receipt of such notice from the Developer, the Authority shall (following inspection by the Authority, to the extent necessary, as determined by the Authority, in its reasonable discretion) issue to the Developer a certificate in recordable form certifying that the Developer has fulfilled its obligation to complete such Component in accordance with the terms of this Agreement (the “Certificate of Completion”).  The Authority shall respond to the Developer’s written request for a Certificate of Completion within thirty (30) days by issuing either a Certificate of Completion or a written statement detailing the manner in which the Project Component or Component Part does not conform to this Agreement or has not been satisfactorily completed, and the measures which must be taken by the Developer in order to obtain the Certificate of Completion.  The Developer may resubmit a written request for a Certificate of Completion upon completion of such measures.  The Authority shall not be obligated to undertake the inspection required under this Section 9.5, or provide such Certificate of Completion if it has a reasonable basis to believe that Completion has not occurred.  In such case, the Authority shall provide the Developer with written notice thereof setting forth, at a minimum, the basis for such determination.  A Certificate of Completion may be issued for each Project Component or any Component Part of a Project Component consisting of a separate economic unit and shall be addressed to Developer, any Component Entity and any Project Lender.  Any dispute under this Section 9.5 shall be subject to resolution in accordance with Article 21 hereof.   (b)                                 Effect of Issuance of Certificate; Continuing Obligations.  A Certificate of Completion issued pursuant to Section 9.5(a) hereof shall constitute the agreement and estoppel of the Authority (or anyone claiming through the Authority) that the terms of this Agreement specifically related to the Developer’s obligation to complete construction of the Project Component, or applicable Component Part, and all other obligations under this Agreement with respect to such Project Component, or applicable Component Part, have been satisfied; however, such Certificate of Completion shall not constitute a representation or warranty of the Authority for any purpose.  After such issuance, however, except as otherwise provided in the Certificate of Completion, all executory terms and conditions of this Agreement and all representations, agreements and covenants contained herein which expressly survive the issuance of a Certificate of Completion will continue to remain in full force and effect, and the issuance of the Certificate of Completion shall not be construed as a waiver by the Authority of any of its rights and remedies pursuant to such executory terms; provided that failure to perform or comply with such representations, agreements and covenants shall not affect the validity of any Certificate of Completion issued for a Project Component, or applicable Component Part, or constitute a default under this Agreement with respect to any Project Component, or applicable Component Part, for which a Certificate of Completion has been issued.   (c)                                  Covenants Running with the Land.  Any Certificates of Completion issued by the Authority are intended as covenants that run with the land and shall inure to the benefit of and be binding upon any and all transferees of the Project Component, including any Project Lender(s) who may acquire title to the Project Component by foreclosure or similar realization or enforcement proceeding or deed in lieu of foreclosure, and any/or Successor or transferee from   49   or at the direction of such Project Lender(s).  Any Certificate of Completion shall be recorded by Developer against title to a Project Component with respect to which, or to a Component Part of which, the Certificate of Completion has been issued.   ARTICLE 10 CONTINENTAL AIRLINES ARENA; MEADOWLANDS RACETRACK   SECTION 10.1.  Use of Arena; Use of Meadowlands Racetrack.  (a) The Parties acknowledge and agree that the Project Site excludes the Arena, the Arena Site and the Development Rights Fee and the Ground Rent payable by the Developer with respect to the Project Site is not allocable to the Arena Site.   (b)                                 The Authority shall continue to use, occupy and operate the Arena pursuant to applicable Existing Sports Complex Agreements for future uses, subject to the terms of this Agreement and the Project Agreements, the Developer’s Right of First Refusal, and consistent with the Enabling Legislation and that doing so shall not constitute an Authority Interference.  Subject to the Master Plan, the Construction Management Agreement, the Project Operating Agreement, the Declaration and the terms hereof, the Developer shall accommodate such continuing use of the Arena by the Authority.  In furtherance of the foregoing, so long as the Developer has not acquired the rights to the Arena, as provided herein, as a result of the exercise of its Right of First Refusal (as hereinafter defined), the Developer shall provide access to the Arena and Arena Site on, over and through such easements as to which the Parties shall mutually agree to enable the Authority or any party succeeding to the rights of the Authority in and to the Arena to enable the Authority or any such successor to exercise its ownership rights with respect to the Arena.  The Parties shall negotiate in good faith the terms of the Construction Management Agreement, the Project Operating Agreement and the Declaration providing for the Authority’s use of the Arena and the Arena Site and the Developer’s (or Component Entity’s, as the case may be) use of the Project Site (or applicable Project Component Site, as the case may be).  In furtherance of the Developer’s covenant to maintain access to the Arena, Authority and Developer (or Component Entity, as applicable) shall enter into reciprocal access easements providing for access to, and operation, future renovation and/or demolition of the Arena and/or future construction at the Arena Site (consistent with the terms hereof), the Arena Site, the Project and the Project Site, which shall be set forth in the Ground Lease (or the applicable Component Leases, as the case may be) and/or the Declaration.   (c)                                  Developer acknowledges that following the Effective Date, the Authority shall continue to use, occupy and operate the Meadowlands Racetrack for the future uses, subject to the terms of this Agreement and the Project Agreements, the Developer’s Right of First Refusal and consistent with the Enabling Legislation and that doing so shall not constitute an Authority Interference.   (d)                                 The rights, obligations and liabilities of the Parties under this Section 10.1 shall be subject to the mutual indemnification provisions of Section 17.6 and Section 17.7 hereof.   50   SECTION 10.2.  Right of First Refusal.  (a) Grant of Right of First Refusal.  (i) The Authority hereby grants to the Developer a right of first refusal, which shall be in recordable form, as described below (“Right of First Refusal”) that shall be exercisable in the event that (A) the Arena shall no longer be used, operated, managed or controlled by the Authority for the purposes in effect as of the Effective Date, and/or (B) the Authority shall have received and determined to accept a bona fide written offer for the ownership, long-term lease, exclusive use (whether by lease, operating or management contract or otherwise) and/or redevelopment of the Arena from a third party.  For purposes of avoiding disputes between the Parties, neither a lease (or the amendment or modification of a lease) to a present or future Sports Complex Tenant (or an Affiliate thereof) or the conduct of a particular category of events presently held at the Arena with greater frequency shall constitute an event permitting the exercise of the Right of First Refusal provided herein.   (ii)                                  The Right of First Refusal may not be separated from this Agreement, transferred, pledged or assigned by Meadowlands Master Developer Limited Partnership without the prior written consent of the Authority which consent may be granted or withheld in the sole discretion of the Authority.   (b)                                 Right of First Refusal Procedures.  The Right of First Refusal shall be governed by the following terms and conditions:   (i)                                     Promptly upon a determination by the Authority that either or both of the events described in Section 10.2(a) hereof have occurred (“ROFR Events”), the Authority shall deliver written notice to the Developer (the “Offer Notice”).  The Offer Notice shall include, at a minimum, a description of the event triggering the delivery of the Offer Notice and all relevant facts (including effective or other material dates) and proposed purchase price, rental and/or all other material financial terms relating to the event described in such notice, together with a description of the impacts of the occurrence of such event on the rights and obligations of the Parties under this Agreement.  Such notice shall also include copies of all supporting documentation relevant to the information set forth in the Offer Notice reasonably available to the Authority and not subject to legal and binding confidentiality agreements, and upon which the Developer is expected to base its decision, including specifically and without limitation, copies of any letter of intent, agreement of sale, redevelopment agreement, operating or management contract or use agreement and/or lease agreements.   (ii)                                  Not later than thirty (30) days following receipt of the Offer Notice, the Developer may provide written notice to the Authority of its determination as to whether the Right of First Refusal will be exercised.  If the Right of First Refusal is exercised by the Developer, the terms and conditions set forth in the Offer Notice (unless otherwise modified to the mutual satisfaction of the Parties) shall govern the Developer’s acquisition, use, reuse and/or renovation of the Arena and no further negotiations concerning the terms and conditions relating to such acquisition, use, reuse or renovation shall be required; provided however, that the Parties shall negotiate in good faith with respect to a written agreement incorporating such terms and conditions of acquisition, use, reuse and/or renovation; provided further however, that if the Offer Notice does not provide an outside date for execution of a definitive agreement, the   51   Authority and the Developer shall execute a definitive agreement within one hundred eighty (180) days following exercise of the Right of First Refusal.   (iii)                               In the event that the Developer rejects or fails to respond to the Offer Notice within the thirty (30) day period set forth herein (time being of the essence), the Authority may enter into the transaction contemplated by the Offer Notice upon the terms and conditions set forth therein.  In the event that the Authority fails to execute and close on a definitive agreement with the Third Party memorializing the transaction contemplated by the Offer Notice within one hundred twenty (120) days following waiver of the Right of First Refusal by the Developer, the Authority shall be obligated to deliver another Offer Notice in accordance with the provisions of Section 10.2(b)(i) hereof.   (d)                                 Limitations.  Notwithstanding anything to the contrary contained in this Agreement, the Developer acknowledges and agrees that its Right of First Refusal applies only to the Arena and the Arena Site and not to any other portion of the Meadowlands Complex.   (e)                                  Event of Default.  Developer acknowledges and agrees that the provisions of this Section 10.2 shall not apply following the occurrence of a Developer Event of Default.  Further, such provisions shall not apply during any period of time in which the Authority has given notice of the existence of a condition that, if uncured, would lead to a Developer Event of Default.  Upon the occurrence of an ROFR Event, and prior to exercising its rights under this Section 10.2(d), the Authority shall provide a copy of the Offer Notice and a second notice of the existence of such condition to the Developer and the Developer shall have an additional ten (10) Business Day cure period from receipt of such second notice and which cure shall be governed by Section 18.1 herein.  If Developer fails to remedy in accordance with the provisions of Section 18.1, the Authority shall have the right, subject to the terms hereof, to receive proposals to enter into an agreement for the acquisition, use, operation, management or redevelopment of the Arena (or any portion thereof) without providing the Offer Notice to the Developer, as contemplated by the provisions of this Section 10.2 and Developer shall have no further rights hereunder.  However, from and after the date (if any) that the Developer Event of Default has been remedied, the provisions of this Section 10.2 shall again be effective as to any future offer and the Authority’s actions shall be governed thereby.   (f)                                    Right of First Refusal for Hotel at Meadowlands Racetrack.  The Declaration and the Ground Lease shall contain a right of first refusal from the Authority for the benefit of the Developer and the Project Site, with respect to the development of a hotel at the Racetrack (the “Racetrack Hotel ROFR”).  The Racetrack Hotel ROFR shall have terms and conditions similar to the terms and conditions of the Right of First Refusal described in Sections 10.2(a) through (e) above, modified to reflect any factual differences between the nature of the two transactions and to contain the following terms and conditions:  (i) the Authority shall have the right to develop a hotel at the Meadowlands Racetrack only in the event that video lottery terminals are installed at the Meadowlands Racetrack; (ii) the Developer shall have the right to assign the Racetrack Hotel ROFR to the Component Entity owning the Hotel Component; and (iii) if at the time the Racetrack Hotel ROFR is triggered, the Developer or Component Entity, as the case may be, shall have not yet committed to develop a hotel on the portion of the Project Site planned for the Hotel Component, then the Developer or Component Entity, as the case may   52   be, shall have a reasonable period of time to attempt to demonstrate to the Authority that a hotel having substantially the same utility to the Authority can be built on the portion of the Project Site planned for the Hotel Component instead of at the Meadowlands Racetrack, and if the Developer or Component Entity, as the case may be, shall be unable to so demonstrate, then (a) the Racetrack Hotel ROFR shall continue to be available to the Developer or the Component Entity, as the case may be, and (b) regardless of whether the Racetrack Hotel ROFR is exercised,  the Authority shall give special consideration to the Approval of a Major Modification to the Approved Master Plan and Conceptual Site Plan to permit the use of the portion of the Project Site planned for the Hotel Component for an alternative use consistent with the Enabling Legislation.  As part of the negotiation of the Ground Lease and Declaration as contemplated under this Agreement, the Parties shall exercise their good faith, diligent and commercially reasonable efforts to negotiate the details and language of the Racetrack Hotel ROFR.   SECTION 10.3.  Interference.  (a) In order to minimize the potential for Authority Interference or Developer Interference, the Authority (i) shall not execute any New Sports Complex Agreements with respect to the use or operation of the Arena if the Developer fails to exercise its Right of First Refusal, if such agreements, if implemented, would have a Material Adverse Effect on the Developer or the Project, or (ii) covenants with the Developer to refrain (and cause the entity with which the Authority has contracted for use of or operation of the Arena and the Arena Site to refrain) from taking any actions that will, in the reasonable judgment of the Developer, have a Material Adverse Effect on the Developer or the Project.   (b)                                 In order to effectuate the foregoing, the Declaration shall set forth the rights and obligations of the Parties with respect to operation of the Arena, the Arena Site, the Project and the Project Site and shall provide that any third party that will own, lease or use the Arena in the manner contemplated in the Offer Notice shall be obligated to make payment to the Developer of its pro-rata portion of Traffic and Infrastructure Improvement Costs.  In addition to the foregoing, if the Authority has funded its payment for all or a portion of the Authority Traffic and Infrastructure Payment Amount, the Developer shall refund to the Authority a prorated portion of funds received from the third party.  Such pro-rata portion shall be determined by multiplying the Actual Traffic and Infrastructure Costs by a fraction, the numerator of which shall be equal to the square footage of the Arena Site and the denominator of which shall be equal to the sum of the square footage of the Project Site plus the Arena Site.   (c)                                  The rights, obligations and liabilities of the Parties under this Section 10.3 shall be subject to the mutual   ARTICLE 11 CONSTRUCTION OF PROJECT   SECTION 11.1.  Construction Management Agreement.  (a) In order to minimize the potential for the occurrence of either Developer Interference or Authority Interference as a result of construction of the Project, as a Material Condition to the Ground Lease Closing, the Parties shall exercise diligent commercially reasonable efforts to negotiate and execute a Construction 53   Management Agreement that will set forth the respective rights and obligations of the Parties and the procedures to be followed during construction of the Project.   (b)                                 The Construction Management Agreement shall be based upon and take into consideration all relevant factors identified by the Parties, including without limitation, (i) the Sports Complex Agreements, (ii) the Plans and Specifications, (iii) the requirements of the Development Approvals, (iv) the Final Project Sequencing Plan and the Final Traffic and Infrastructure Sequencing Plan, (v) all Traffic Studies, and (vi) the Conceptual Site Plan (prior to Approval of the Master Plan) and the Master Plan subsequent to the Authority’s Approval thereof, and shall, at a minimum, address the matters set forth in this Article 11.   SECTION 11.2.  Project Professionals; Plans and Specifications.  Developer shall select and negotiate contracts with, and shall supervise and coordinate the services of, all architects, engineers, land planners and other experts and consultants (collectively, the “Project Professionals”) necessary to provide architectural, engineering, land planning and other services for the development and construction of the Project and the completion of the Project and Traffic and Infrastructure Improvements, including the preparation by such Project Professionals of detailed plans, specifications and drawings for the Project and Traffic and Infrastructure Improvements (such plans, specifications and drawings, being herein collectively referred to as the “Plans and Specifications”).  The Plans and Specifications shall materially conform to and comply with the Conceptual Site Plan and Approved Master Plan, as the case may be, Perimeter Survey, Project Agreements and Legal Requirements.  All such contracts shall be in the name of the Developer or the Component Entity, as the case may be, but shall be consistent with the terms of this Agreement.  As of the date hereof, Developer has engaged the individuals and professional service firms set forth on Schedule 11.2 attached hereto.   SECTION 11.3.  Authority’s Construction Representative.  (a) The Authority shall appoint, and at all times during the Construction Period shall maintain, a qualified construction consultant as the Authority’s Construction Representative to review and inspect the work performed by Developer and advise the Authority in connection therewith (the “Authority’s Construction Representative”).  The Authority hereby initially appoints the party set forth on Schedule 11.3 hereof as the Authority’s Construction Representative, subject to the Authority’s right to substitute same in its sole discretion.  In the exercise of its duties on behalf of the Authority, the Authority’s Construction Representative shall have the right to exercise on behalf of the Authority, all of the rights granted to the Authority under the Project Documents.   (b)                                 The Developer shall be responsible for payment of compensation to the Authority’s Construction Representative in an amount equal to 30% of the fees and expenses payable by the Authority to the Authority’s Construction Representative per year for a period of six (6) years from the Effective Date; provided however, the aggregate cumulative amount of the Developer’s contribution over the six (6) year period shall not exceed $2,000,000.   SECTION 11.4.  Designated Representatives; Communication.  Each of Developer and the Authority hereby designate the respective Designated Representatives set forth in Schedule 11.4 hereto.  Each of the Designated Representatives shall be the agent of Developer and the Authority, respectively, until Completion of the Project and shall be authorized to act on   54   behalf of each Party, except to the extent that such authorization is limited by the Developer or the Authority, as the case may be, in writing, provided to the other Party.  In order to maintain clear channels of reporting authority and avoid inconsistent directions and miscommunications, all communications by the (a) Authority’s Designated Representative with any of the Project Professionals or Project Contractors shall be processed through the Developer’s Designated Representative and (b) Developer’s Designated Representative with any of the Authority’s staff, consultants and/or professionals shall be processed through the Authority’s Designated Representative.  Each of the Developer and the Authority may change the Designated Representative from time to time, upon written notice to the other Party.   SECTION 11.5.  Review of Plans and Specifications.  The Developer shall consult with the Authority with respect to the design and construction of the Project and shall provide the Authority with copies of all Plans and Specifications for its review, such review to be carried out in accordance with the provisions of this Section 11.5 and Section 11.6 hereof.  The Developer shall review any comments received from the Authority and shall exercise diligent and commercially reasonable efforts to incorporate the Authority’s comments and proposed changes; provided however, that the Developer shall not be obligated to modify the Plans and Specifications in such a way as would result in a material increase in the cost of the design, permitting, construction or operation of the Project (or the applicable Component thereof) or would result in a material delay in commencement of construction of the Project (or any Component thereof) and/or Final Completion or materially vary from the Conceptual Site Plan, the Approved Master Plan as the case may be.  To the extent that Developer elects not to incorporate into the Plans and Specifications modifications proposed by the Authority, the Developer shall provide a written explanation to the Authority as to the reasons that such proposed modifications are not to be so incorporated.  Further, in such event, the Developer shall use diligent and commercially reasonable efforts to confer with the Authority to determine whether the Authority’s proposed modifications could be incorporated in some other fashion such that the adverse effects anticipated by the Developer are minimized or avoided.   SECTION 11.6.  Timing of Review.  The Authority and Developer acknowledge and agree that the scope and volume of certain Plans and Specifications to be made available to the Authority for review and comment hereunder are substantial and varied, so that it may not be possible for the Authority to review and comment on such documents within five (5) Business Days.  At the time the Developer delivers any documents to the Authority for review hereunder, Developer shall simultaneously set forth in writing a requested response date if other than five (5) Business Days, stating with specificity any significant dates or events for which the approval of the Authority is required or desirable including, without limitation, hearing dates, expiration of appeal periods or similar matters designated in the Project Schedule.  The Authority shall exercise diligent and commercially reasonable efforts to complete the review and deliver written comments to Developer prior to the expiration of any such period.  Developer shall exercise diligent and commercially reasonable efforts to deliver all documents and materials to the Authority at such times, in such a manner and in such detail as to permit the Authority to undertake a thorough review consistent with its obligations hereunder.  Upon the reasonable request of the Authority, Developer shall furnish such additional plans, specifications, documents, reports, studies, information or investigations as the Authority shall reasonably require in evaluating the Plans and Specifications.  In the event that the Authority fails to provide   55   the Developer with its comments within the identified time for its review and comments, then the Developer may submit such documents to the appropriate regulatory agency without the Authority’s comments; provided however, that in such event, nothing herein shall be construed to prohibit the Authority from subsequently providing comments to the Governmental Body having competent jurisdiction for issuance of such Development Approval.   SECTION 11.7.  Notice of Commencement of Construction.  At least thirty (30) days prior to the commencement of construction of the Project (or Component or Component Part), the Developer (or Component Entity, as applicable) shall provide written notice to the Authority of its intent to commence construction (the thirty-day period following such notice, the “Construction Notice Period”).  On or prior to the last day of the Construction Notice Period, the Authority shall review the Plans and Specifications, and any updates to the Final Project Sequencing Plan and the Final Traffic and Infrastructure Plan and such other documents as the Authority may reasonably request to confirm compliance with this Agreement, the Master Plan, the Construction Management Agreement and the other Project Agreements to assure that construction of the Project (or the applicable Component thereof) is consistent with the Construction Management Agreement, Approved Master Plan, the Ground Lease (and, to the extent applicable, the Component Lease governing the Component that is the subject of the pre-construction notice) and the Development Approvals.  Unless the Authority provides written notice to the Developer prior to the last day of the Construction Notice Period that an inconsistency exists and the Authority has determined that construction cannot commence, provided that no Developer Event of Default then exists, the Developer may commence construction at the end of the Construction Notice Period.   SECTION 11.8.  Compliance with Master Plan and Development Approvals.  The Project shall be constructed substantially in the manner and at the locations shown and described (i) in the Master Plan (including, without limitation, all of the narrative description related thereto) or any Approved Post-Approval Item, in each case, as set forth in Section 6.2 hereof, (ii) the Development Approvals, and (iii) the Plans and Specifications reviewed by the Authority related to the development of each Project Component (subject to immaterial variances necessitated by field conditions and technical considerations permitted under this Agreement and the Project Agreements).   SECTION 11.9. Shared Utilities; Stormwater Management.  (a) Utilities.  During the Construction Period, to the extent of available capacity and as long as no Developer Interference results from such use, the Developer shall be permitted to use sewerage, electricity and water from the utility systems presently servicing the Sports Complex; provided however, that the Developer shall (at its expense) first install all necessary connections and separate meters to monitor Developer’s consumption of electricity and water.  Determinations as to whether sufficient capacity is available for the Developer’s use shall be made in accordance with the provisions of the Construction Management Agreement.  The Developer shall be responsible for payment of all costs and expenses relating to the use of such utilities.   (b)                                 Utility Easements; Modification of Utility Easements.  As part of construction of any Project Component (or any Phase thereof), Developer shall diligently proceed to cause all utility or other easements that would materially interfere with the   56   construction or maintenance of the Project (or applicable Project Component, or Phase thereof) to be removed or relocated as expeditiously as possible.  In any event, Developer shall (with the Authority’s cooperation) cause such easements to be removed or relocated before they interfere in any material respect with the prosecution of the work involved with the Project in accordance with the Project Schedule.  To the extent reasonably requested by the Developer in order to facilitate the relocation of any existing utility easements within the Sports Complex, the Authority shall execute all reasonably necessary easements and/or amendments to existing easement agreements at such time(s) as required so that the Developer may prosecute construction of the Traffic and Infrastructure Improvements in accordance with the Project Schedule and the Final Traffic and Infrastructure Improvement Sequencing Plan.  Notwithstanding the foregoing, in light of the numerous utility lines that are anticipated to be required to be relocated prior to construction of the Project and the Traffic and Infrastructure Improvements, the Developer may (in the exercise of its sole discretion) determine not to obtain final executed easements relating to such relocations until such time as all such relocations have been completed.  In such event, the Developer shall no later than sixty (60) days prior to the estimated substantial completion of such utility relocations, provide the Authority with fully designed drawings and surveys of the utilities to be relocated and the required easements resulting therefrom.  In such event, the Developer shall, prior to commencement of construction of any relocated utilities, obtain (with the cooperation of the Authority and in accordance with the provisions of the Construction Management Agreement) such construction and access easements and rights to relocate utilities as will be required to effectuate the construction of the Project.  Except as expressly provided in this Agreement or the Project Agreements, the Authority shall have no obligation to procure or execute any agreement relating to any easement or modification to any existing easement that: (A) imposes an additional financial obligation on the Authority, (B) increases non-monetary obligations and liabilities of the Authority in any material respect, (C) materially interferes with the operation of the Sports Complex or creates material operating inefficiencies with respect to the delivery of utilities to any existing building or future development on the Meadowlands Complex permitted under this Agreement; and (D) reduces the quantity or quality of utility service to the Sports Complex.   (c)                                  Wastewater and Stormwater Systems.  (i) To the extent of available capacity (determined as of the Effective Date), the Developer shall have the right to use (A) the Authority’s wastewater system, and (B) the Authority’s detention basin in connection with Developer’s dewatering of the Project Site, in accordance with the applicable provisions of the Construction Management Agreement and the Project Operating Agreement so long as such use does not (A) impose an additional financial obligation on the Authority, (B) increase non-monetary obligations and liabilities of the Authority in any material respect, (C) materially interfere with the operation the Meadowlands Complex permitted under this Agreement; and (D) reduce the quantity or quality of water or other utility service to the Sports Complex.  Any determinations as to whether sufficient capacity is available for the Developer’s use shall be made in accordance with the provisions of the Construction Management Agreement.  In furtherance of the foregoing, the Parties shall cooperate, in good faith, to modify that portion of the Authority’s stormwater management system servicing the Project Site, and, if necessary, other portions of the Sports Complex, and modify the Authority’s NJPDES permit relating to the foregoing.   57   (ii)                                  From and after the Effective Date, the Authority shall not grant any third party (including without limitation, Existing Sports Complex Tenants) use of available capacity in the Authority’s wastewater or stormwater systems in excess of the capacity utilized by existing uses and tenants without the prior written consent of the Developer (which consent shall be provided or withheld in the Developer’s reasonable discretion); provided however that if such grant will not have a Material Adverse Effect on the Project, this Section 11.9(c)(ii) shall not apply.   SECTION 11.10.  Construction Interference.  The Construction Management Agreement shall provide for reasonable protections and remedies for construction interference by Authority and Developer.   SECTION 11.11.  Compliance with Sports Complex Commitments.  (a) Sports Complex Events.  The Developer shall use commercially reasonable construction methods to avoid creating a Developer Interference, giving due consideration to, among other things, regularly scheduled professional sports contests (including, without limitation, professional football games, soccer games, racing events and professional hockey and basketball games) and in such manner as is consistent with the provisions of the Construction Management Agreement.   (b)                                 Dispute Resolution.  Developer and the Authority (subject to the terms, covenants and conditions of Sports Complex Agreements and the Construction Management Agreement) shall cooperate to resolve, in a commercially reasonable manner, any material problem regarding a Developer Interference that arises from Developer’s proposed construction activities on the Project Site.   (c)                                  Construction Barriers.  Developer acknowledges that activities in the Sports Complex involve, among other uses, sporting events and other public uses that may be adversely affected by Developer’s construction of the Project, as a result of inaccessibility of parking fields or avenues of ingress and egress, vibrations, utility interruption, noise and fumes or any other conditions arising therefrom. During the period in which the Project will be under construction, Developer shall, at Developer’s sole cost and expense, install and maintain construction barriers to separate the Project Site from the Sports Complex, as and to the extent required by the Construction Management Agreement.   (d)                                 Plan Reviews; Meetings.  Developer and the Authority agree that Developer’s Designated Representatives shall have regularly scheduled meetings with the Authority’s Designated Representatives and the Project Contractors during the planning and construction stages of the Project to discuss the impact of the construction activities on the Sports Complex, the progress of the construction activities and how anticipated construction activities can be performed in a commercially reasonable manner to minimize any Developer Interference (including, without limitation, with the conduct of regularly scheduled professional sports contests and entertainment events).  Such meetings shall be governed by the provisions of the Construction Management Agreement.   58   (e)                                  Indemnification.  The rights, obligations and liabilities of the Parties under this Section 11.11 shall be subject to the   SECTION 11.12.  Office.  During the Construction Period, Developer shall maintain within the State of New Jersey an office (the “Local Office”) from which it will perform its duties hereunder.  Such office need not be distinct from an office in which Developer carries on other activities.  Developer may change the location of such office within the State of New Jersey upon at least fifteen (15) days prior written notice to the Authority.   ARTICLE 12 PROJECT OVERSIGHT   SECTION 12.1.  Project Oversight Prior to Completion.  (a) Prior to Completion of the Project or any Component or Phase thereof, Developer and the Authority shall cooperate to exchange information relevant to the development of the Project or any Component or Phase thereof, subject to compliance with third party confidentiality agreements, and the restrictions placed on the disclosure of material non-public information by federal securities laws.  In furtherance of the foregoing, the Authority and Developer shall comply with the covenants and conditions set forth herein.   (b)                                 Project Schedule.  During the Construction Period, the Developer shall use its diligent and commercially reasonable efforts to prepare an updated Project schedule (“Project Schedule”) no less frequently than the first day of each quarter commencing on the first day of the month immediately following the Commencement of Construction.  The initial Project Schedule is attached hereto as Exhibit “E”.   SECTION 12.2.  Construction Approval.  The Authority acknowledges that prompt responses to matters submitted for its review, comment or, to the extent applicable, its Approval during the Construction Period are necessary to maintain the Project Schedule.  For that reason the Authority will not unreasonably withhold, condition or delay its review or, to the extent applicable, its Approval of any such construction-related matter submitted to the Authority during any Construction Period.  Unless otherwise provided in the Construction Management Agreement, if the Authority has not responded to Developer’s request for review or, to the extent applicable, Approval within five (5) days following the date that Developer has requested such review, comment or, to the extent applicable, Approval in writing and provided the Authority with copies of the applicable materials reasonably required or related thereto, Developer may give the Authority’s Construction Representative written notice of such failure to respond.  If the Authority does not give Developer written notice objecting to the matter in question within five (5) days after the date Developer gives this notice (which notice shall identify such five (5) days deemed Approval mechanism), the Authority’s review or, if to the extent applicable, Approval of the matter in question shall be deemed given.  The foregoing shall not limit or diminish the Authority’s rights of review provided under Section 6.2 hereof with respect to modifications of the Approved Master Plan.   59   SECTION 12.3.  Progress Meetings.  Unless otherwise provided in the Construction Management Agreement, Developer agrees to schedule regular progress meetings to report on the status of the Project and to review the progress under the Project Schedule.  The Authority’s Construction Representatives shall attend each of such meetings and the Authority hereby covenants to use commercially reasonable efforts to assure that the Authority’s Construction Representative is present at such meetings.  The Developer shall provide the Authority with not less than three (3) Business Days advance written notice of such meetings.  The meetings shall be held at the Project Site or at such other mutually acceptable location as may be appropriate in light of the agenda and progress meeting attendees.  Prior to the meeting, representatives of the Authority may, in compliance with state and federal laws, regulations and ordinances, visit the Project Site accompanied by representatives of Developer to inspect the progress of the work on the Project.  The agenda for the meeting shall include, but not be limited to, a status report with regard to development of Plans and Specifications, Development Approval submissions and approvals, financial commitments, construction of the Project and Traffic and Infrastructure Improvements, and activities concerning marketing, sales and leasing.  At the meeting, this information may be reasonably evaluated by the Authority to determine material compliance with the material terms and conditions of this Agreement and the Project Schedule.  The Developer shall prepare and distribute minutes of such progress meetings for review by the Authority.  Following review and revision (to the extent required) of such meeting minutes, such minutes shall be maintained as a permanent record of the Construction Period decisions made by the Parties.   SECTION 12.4.  Progress Reports.  Unless otherwise provided in the Construction Management Agreement, Developer shall endeavor in good faith to submit to the Authority a monthly written progress report (the “Progress Report”) (or more frequent information regarding the progress of the Project, if reasonably requested by the Authority) that shall include a description of activities completed, the activities to be undertaken prior to the next monthly progress report, the status of all Development Approvals, the status of any Project financing, an explanation of each activity, if any, that is showing delay, a description of problem areas, current and anticipated delaying factors and their estimated impact on performance of other activities and scheduled Completion Dates in the Project Schedule and an explanation of corrective action taken or proposed.   SECTION 12.5.  Access to Project Site.  Subject to the Authority’s provision of adequate liability insurance to insure the Authority and its Authorized Representatives, the Authority and its Authorized Representatives shall have the reasonable rights of access to enter the Project Site with a representative of Developer to inspect the site and any and all work in progress for the purpose of furthering its interest in this Agreement.  Such inspection shall be for informational purposes and shall not relieve Developer from its obligation to implement the Project in accordance with this Agreement.  In no event shall the Authority’s inspection of the Project be deemed acceptance of the work or be deemed to waive any right the Authority has under this Agreement.   SECTION 12.6.  Community Relations; Stakeholders Advisory Group.  Developer acknowledges the formation of a Stakeholders Advisory Group in connection with the RFP consisting of two (2) local mayors; two (2) legislators representing constituents from the region;   60   two (2) representatives from the Meadowlands Chamber of Commerce; one (1) representative from New Jersey Transit; one (1) representative from the environmental community; and one (1) representative of the local trade unions (collectively, the “Stakeholders Advisory Group”) and further acknowledges the Authority’s commitment to maintain the functionality of the Stakeholders Advisory Group during the Construction Period for the Project.  As such, Developer shall after the Effective Date until the Ground Lease Closing Date, at Developer’s sole cost and expense, designate and assign a senior member of the Project Team to act as a liaison (the “Stakeholders Liaison”) among Developer, the Authority and the Stakeholders Advisory Group.  The Stakeholders Liaison shall be available at reasonable times to meet with the Stakeholders Advisory Group or the Authority.  On a timely and regular basis, Developer shall notify the Stakeholders Advisory Group and the Authority, in writing, of (a) written comments or recommendations Developer receives from any Governmental Body regarding and/or relating to the Project and/or Developer’s construction and operation thereof, and (b) the responses and/or actions taken by Developer, if any, in response to such comments or recommendations.   SECTION 12.7.  Agreement to Cooperate; Authority’s Event Rights; Operating Plan; Security.  (a) Agreement to Cooperate.  The Parties acknowledge that the mutual presence and simultaneous operation of the Sports Complex facilities and the Project within the Meadowlands Complex present complicated operational issues that will require substantial initial and ongoing effort to successfully manage.  As further set forth herein and in the Construction Management Agreement, the Project Operating Agreement, the Ground Lease and the Declaration, the Parties exercise diligent commercially reasonable efforts to cooperate and carry out their respective rights and obligations under this Agreement and the Ground Lease in such manner as assures, to the greatest extent practicable, the efficient operation of all facilities within the Meadowlands Complex, including the Project.   (b)                                 Project Operating Agreement.  (i) In order to minimize the potential for the occurrence of either Developer Interference or Authority Interference as a result of operations of the Project, the Parties shall negotiate and execute a Project Operating Agreement that will set forth the respective rights and obligations of the Parties and the procedures to be followed during operation of the Project.   (ii)                                  The Project Operating Agreement shall be based upon and/or recognize, as applicable (A) the obligations imposed on the Authority and the rights granted under the Sports Complex Agreements, (B) the Plans and Specifications, (C) the requirements of the Development Approvals, (D) the Final Project Sequencing Plan and the Final Traffic and Infrastructure Sequencing Plan, (E) the Conceptual Site Plan (prior to Approval of the Master Plan) and the Master Plan subsequent to the Authority’s Approval thereof, (F) the Declaration, and (G) the terms of the Project Agreements, and shall, at a minimum, address the matters set forth in this Article 12.   (c)                                  Authority’s Event Rights.  The rights and obligations of the Parties with respect to the Project Site and Parking Component, access to, and vehicular parking at, and servicing of the Sports Complex for designated events to be held at the Sports Complex pursuant to the Sports Complex Agreements shall be determined by the Project Operating Agreement.   61   (d)                                 Security.  The Authority and the Developer shall mutually agree to a plan for security at the Sports Complex and Project Site.  Such security plan shall establish procedures and protocols to be followed by the Parties with respect to communication, coordination and cooperation (taking into account all relevant factors) so as to enable the (i) Authority to comply with its obligations under any Sports Complex Agreements, and (ii) Developer to construct, operate and manage the Project in the manner contemplated by this Agreement and the Ground Lease.  Such security plan shall be incorporated into the Project Operating Agreement and the Declaration.   ARTICLE 13 USES, USE RESTRICTIONS; TENANCY AND OPERATOR REQUIREMENTS   SECTION 13.1.  Permitted Uses; General Covenants.   Developer acknowledges that the Enabling Legislation establishes and limits the types of facilities that may be developed at the Project Site.  The Authority has determined that the Enabling Legislation permits construction and operation on the Meadowlands Complex of facilities similar in scope and composition to the Project and permits such facilities to be operated in a manner that includes the Component Uses.  Developer represents, warrants and covenants that the Project shall be developed and maintained in all respects as a first-class mixed-use development and shall be used solely for the applicable Component Uses related to each of the Hotel Component, the Office Component, the Entertainment/Retail Component and the Parking Component.  The foregoing shall not be deemed to require that the Components be constructed and operated as separate uses, but rather, the Parties hereby acknowledge that one or more Components may be developed as combined uses sharing common areas and common amenities and facilities.  Unless the Authority’s prior Approval of a Major Modification has been obtained, the Developer shall, subject to and, to the extent required by, the material terms of the Project Agreements, substantially maintain, and represents and warrants it shall substantially maintain, the Component mix described by the definition of Entertainment/Retail Component Uses, Office Component Uses, Hotel Component Uses and Parking Component Uses, respectively.  Schedule 13.1 sets forth certain prohibited uses which will be incorporated into the Declaration and bind the Project Site and Sports Complex.   SECTION 13.2.  Tenants and Operators.  Developer shall use its commercially reasonable efforts to attract and maintain first class Tenants and operators, as that term is generally understood in the retail, office leasing, hotel, and entertainment industries, including but not limited to nationally and internationally known retail and hotel chains, real estate management companies, and entertainment providers for all Components of the Project.   SECTION 13.3.  Litigation.  (a) If any litigation, the outcome of which would make any representation or warranty provided by the Parties herein untrue or materially inaccurate is commenced or otherwise seeks to enjoin, limit or preclude the construction, development, use or operation of the Project, or effectuation of this Agreement, the Project Agreements, any Component Lease, any Component Agreement and/or the Development Approvals is instituted by a third party (collectively, “Project Litigation”), the Parties shall jointly pursue the defense of   62   all Project Litigation to final judgment and, if adversely determined, the Parties shall jointly and diligently pursue all rights of appeal.  If a court or tribunal of competent jurisdiction issues a final, non-appealable order having the effect of limiting or precluding the ability of the Developer to perform its obligations under this Agreement or to effectuate the transactions contemplated by the Master Plan and the Development Approvals, thereby causing the Authority’s representations and warranties set forth in Section 15.9 and Section 16.2(a) hereof to be inaccurate, the following provisions shall apply in lieu of any other remedies that may be available under this Agreement, at law or in equity:   (i)                                     If the events described in Section 13.3(a) occur, resulting in a reduction in the aggregate square footage of the Project as proposed (or of any Component thereof), and such events occur prior to the Ground Lease Closing Date, the material condition relating to Project Litigation provided in Section 8.2(b)(vii) shall be deemed satisfied and the amount of the Development Rights Fee, Ground Rent and Developer PILOT Payments payable by the Developer shall be reduced on a pro-rata basis to give effect to the reduced size and/or composition of the Project.  Notwithstanding the foregoing, if the resulting amount of GLA or square footage of the Project (or the applicable Component), after giving effect to the events described in Section 13.3(a), is less than eighty percent (80%) of the GLA or square footage of the Project (or the applicable Component) as of the Effective Date (the “Minimum Project Area”), either Party may, upon thirty (30) days prior written notice to the other Party, determine to terminate this Agreement as to the Project Component (or the applicable Component thereof) rather reducing the amount of the Development Rights Fee.  If the Agreement is terminated, the Deposit Letter shall be returned to the Developer on the date that such determination becomes effective.  From and after such date, neither Party shall have any rights or obligations with respect to the matters set forth in this Agreement or the transactions contemplated hereby.  If the Agreement is not terminated, the Developer shall have the right to reallocate portions of the GLA among the Components to minimize the impact of the reduction on a particular Component, subject, in all events to the terms and conditions of this Agreement and the Project Agreements.   (ii)                                  If the events described in Section 13.3(a) occur, prior to or after the Ground Lease Closing Date and such events result in the prohibition of construction and operation of any portion of the Entertainment/Retail Component, the Development Rights Fee (to the extent occurring prior to the Ground Lease Closing Date) and the Ground Rent and/or Developer PILOT Payment (to the extent occurring after the Ground Lease Closing Date) shall be reduced on a pro-rata basis in order to give effect to the impact of such order or decision, but in no event shall exceed 600,000 square feet of GLA.  600,000 square feet of GLA shall be used for purposes of calculating the pro-rata reduction provided in this Section 13.3(a)(ii).   (iii)                               If the events described in Section 13.3(a) occur subsequent to the Ground Lease Closing Date, and the amount of GLA or square footage comprising the Project is reduced as a result of such events but not so that less than the Minimum Project Area, the Parties shall negotiate in good faith to modify this Agreement and the Ground Lease (including without limitation a pro-rata reduction in the amount of the Ground Rent and/or Developer PILOT Payment payable by the Developer or a Component Entity, as the case may be) in order to give effect to the impact of such order or decision.   63   (b)                                 Surplus Property.  If the resulting amount of GLA or square footage of the Project (or the applicable Component), after giving effect to the events described in Section 13.3(a), is less than the Minimum Project Area as of the Effective Date, and/or (ii) the Parties do not reach a mutually acceptable modification to this Agreement and the Ground Lease so as to reflect the impacts of the decision or order described in Section 13.3(a) above (notwithstanding the provisions of Section 13.3(a)(ii) above, the Developer may request that the Authority (i) determine that the Project Site is not needed by the Authority to carry out its obligations under the Existing Sports Complex Agreements, and (ii) as “surplus property”, lease the Project Site to the Developer pursuant to the provisions of N.J.S.A. 5:10-5(f) and N.J.S.A. 5:10-18(a).  The terms of such lease shall provide for the Project to be constructed and maintained in substantially the same manner and on substantially the same terms as are set forth in this Agreement.  If the Parties do not reach a mutually acceptable modification of this Agreement and the Ground Lease (as provided in Section 13.3(a) above) and the Developer does not lease the Project Site pursuant to the provisions of this Section 13.3(b), then upon thirty (30) days prior written notice, the Developer may terminate this Agreement.  In such event, this Agreement shall be of no force and effect from and after such date.   (c)                                  Exclusive Remedy.  This Section 13.3 is intended by the Parties as the exclusive repository of the Parties’ respective rights and obligations with respect to any reduction in the GLA or restriction upon the use of the Project by reason of Project Litigation.  Except as to the right to enforce the terms and conditions of this Agreement, the Authority and Developer each waives, relinquishes and agrees to forebear from exercising any rights, claims or causes of action for any loss, contribution, indemnity, damages, or other harm with respect to the occurrence of the events described in this Section 13.3, that either Party may have or that may hereafter accrue against the other by reason of any adverse impact of any Project Litigation.   SECTION 13.4.  Sunday Closing Law Compliance.  The Developer shall comply with the provisions of the Sunday Closing Law, N.J.S.A. 2A:171-5.8, to the extent in effect in Bergen County, New Jersey, and covenants not to challenge the applicability of same to the Project or any portion thereof.  Each of the agreements with Tenants and operators of the Entertainment/Retail Component shall require compliance with Legal Requirements.   SECTION 13.5.  Declaration of Covenants and Restrictions.  (a) Contents and Effect of Declaration.  As a Material Condition to the Ground Lease Closing, Developer and the Authority shall negotiate in good faith and enter into a mutually satisfactory Declaration of Covenants and Restrictions (the “Declaration”) to be recorded in the Bergen County, New Jersey land records on the Ground Lease Closing Date and prior to the recording of any leasehold mortgage or other encumbrance relating to the Project Site.  It is intended and agreed, and the Declaration shall so expressly provide, that the agreements and covenants set forth therein shall be covenants running with the land and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in this Agreement, be binding, to the fullest extent permitted by law and equity, for the benefit and in favor of, and enforceable by the Authority and/or the Developer, as their interests may appear, and any successor in interest to the Project Site, or any part thereof, against Developer and/or the Authority, as the case may be, its successors and assigns and every   64   successor in interest therein, and any party in possession or occupancy of the Project Site or any part thereof.  It is further intended and agreed that the provisions of the Declaration shall remain in effect without limitation as to time; provided however, that such agreements and covenants shall be binding on the Parties, each successor in interest to the Project, the Project Site, or any part thereof, and each party in possession or occupancy.  The Declaration shall address matters of material interest to the Parties including, without limitation, the following:  uses, design criteria, parking, non-interference, reciprocal access to and from the Arena and Project Site, respective maintenance obligations and Right of First Refusal.   (b)                                 Restriction Against Transfers.  The Declaration shall contain a restriction against transfers, as set forth in Article 14 hereof and, in addition, shall provide that in the event of any attempted transfer in violation of the restriction in Article 14 hereof, the Authority shall be entitled to the ex parte issuance of an injunction restraining such transfer, and legal fees and related expenses of the Authority in connection with any such legal action.  Upon the recording of the Declaration in the land records of Bergen County, the provision affording such injunctive relief shall have the same force and effect as a Notice of Lis Pendens.   (c)                                  Enforcement by the Authority.  In furtherance, and not in restriction of the provisions of this Section 13.5, it is intended and agreed that the Authority shall be deemed beneficiary of the provisions of the Declaration in its own right but also for the purposes of protecting the interests of the community and other parties, public or private, in whose favor or for whose benefit such agreements and covenants shall run (and the Declaration shall so state), without regard to the nature of the Authority’s interest in the Project Site.  The Authority shall have the right, in the event of any breach of any provision of the Declaration, to exercise all the rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant, to which it or any other beneficiaries of such provision may be entitled, including without limitation, recoupment of any funds from a rental in violation of the Declaration, injunctive relief to prevent further violation of the Declaration, entry on the premises and specific performance.   SECTION 13.6.  Mutual Use Recognition.  As provided in this Agreement including but not limited to Sections 3.7, 10.1 and 11.1, the Authority has expressly informed the Developer and the Developer has acknowledged that the Authority requires a certain level of flexibility with respect to the current and future uses at the Sports Complex including Giants’ Stadium, Arena and Meadowlands Racetrack. The Parties have agreed herein that the mutual provisions addressing the Parties’ respective use issues will be addressed in the Project Agreements including but not limited to the Declaration. In furtherance of the foregoing, the Parties agree as follows:   (a)           Developer Recognition. Developer acknowledges and agrees that the Sports Complex includes the Arena, Giants Stadium and the Meadowlands Racetrack, each of which are established venues operated and maintained by the Authority in accordance with and pursuant to the Enabling Legislation, which venues may be upgraded, renovated or otherwise altered at any time after the Effective Date, subject to the terms of this Agreement and the Project Agreements.  Developer further acknowledges that following the Effective Date, the Authority shall continue to use, occupy and operate, directly or indirectly, Giants Stadium, the Arena and Meadowlands   65   Racetrack pursuant to applicable Existing Sports Complex Agreements and the Enabling Legislation including for future uses; provided, such uses are substantially consistent with the uses for which the assets are currently being used or permitted to be used by the Authority as of the Effective Date hereof and subject to the terms of this Agreement, Project Agreements, Right of First Refusal (hereinafter defined), and the Enabling Legislation. The Developer recognizes the Existing Sports Complex Agreements and acknowledges that the rights granted to Developer and the obligations assumed by Developer hereunder are subordinate to the rights granted by the Authority to the Sports Complex Tenants. Accordingly, subject to the Master Plan and the Project Agreements, the Developer shall use its diligent and commercially reasonable efforts to accommodate such continuing use of the Sports Complex facilities including but not limited to the renovation or redevelopment thereof consistent with the terms of Section 10.1 and Section 13.6(b) herein.  Subject to the foregoing, the Authority shall have maximum flexibility related to authorizing and approving uses, renovation and redevelopment plans provided such uses, renovation and/or plans are directly related to the primary business purposes of Giants Stadium, the Arena and Meadowlands Racetrack as sports and/or entertainment related spectator oriented venues. Specifically, the Authority shall have the right to:   (i)                                     authorize and/or approve entertainment, recreational,  training or educational facilities and such facilities necessary or useful to promote athletic contests, spectator events, trade shows and other expositions that are directly related to the primary business purpose of the Arena, Giants Stadium or the Meadowlands Racetrack as the case may be; provided however, that such facilities shall (A) not routinely and primarily be open to the general public during non-event times, (B) generally require payment of the admission price and/or presentation of the spectator ticket prior to accessing the space containing such facilities, and (C) not include Entertainment/Retail Uses which when taken in the aggregate (determined by square footage) could in the commercially reasonable discretion of the Developer be viewed as competing directly with the Entertainment/Retail Component Uses on the Project Site;   (ii)                                  authorize and/or approve business offices which are directly related to the primary business purposes of the Arena, Giants Stadium and the Meadowlands Racetrack as the case may be, including, without limitation, sports franchise offices, Authority offices and offices maintained in connection with any other uses permitted to be carried out at the Sports Complex; provided however, that such  offices permitted hereunder shall not be offered for lease, license or other form of occupancy agreement to third parties separately from the primary business permitted to be conducted hereunder.   (iii)                               any souvenir store, concession stand, restaurant, pushcart, or similar customary stadium/arena/track amenity within the Arena, Giants Stadium and the Meadowlands Racetrack including but not limited to, the sale at retail of food and beverage (including “white tablecloth” fine dining facilities), sports branded merchandise including clothing and souvenirs, provided however, that such facilities shall (a) routinely and primarily not be open to the general public during non-event times, (b) generally require payment of the admission price and/or presentation of the spectator ticket prior to accessing the space containing such facilities, and (c) not include Entertainment/Retail Uses which when taken in the aggregate square footage could in the commercially reasonable discretion of the Developer be viewed as competing directly with the Entertainment/Retail Component Uses on the Project Site.   66   (b)                                 Authority Recognition. The Authority acknowledges and agrees that the exclusive development rights granted to the Developer pursuant to the terms hereof have a significant value by reason of their exclusivity, and Developer acknowledges that the Authority has selected Developer as the exclusive developer by reason of the Developer’s unique experience and business acumen in the exercise of such rights.  In consideration of the foregoing, the Authority covenants and agrees to protect the exclusivity of such rights, subject to the terms hereof and the other Project Agreements, by and through the imposition and exercise of the rights and obligations provided in this Section 13.6. Subject to the Existing Sports Complex Agreements and the rights provided in Section 13.6(a) above, the Authority grants Developer an exclusive with respect to the Component Uses. The covenants, conditions, and restrictions contained in this Section 13.6 are for the benefit of the Project Site, and shall run with the land and inure to and pass with the Project Site, and are intended to be binding on Authority and its successors and assigns. As noted above, these exclusive rights shall be memorialized in the Declaration and recorded against the Project Site and Sports Complex. The Authority shall use diligent, commercially reasonable efforts to enforce the restrictive covenants provided herein at the Authority’s sole cost and expense.  The Authority acknowledges that Developer may, but is not obligated to, enforce such restrictive covenants and the Authority hereby authorizes Developer, at Developer’s election following the failure of the Authority to enforce such rights, to file suit at law or in equity on the Authority’s behalf and seek a court injunction or damages against any third party in violation of such restrictive covenants, in which event Authority shall reimburse Developer for all reasonable attorney’s fees, expenses and costs of suit.  The rights granted herein shall be incorporated into the Ground Lease, the Declaration and any Component Agreement and Component Lease (except a Component Lease to which the Authority is not a party).   ARTICLE 14 TRANSFER RESTRICTIONS   SECTION 14.1.  Transfers Prohibited.  Except as otherwise specified in Section 14.2 below, neither this Agreement nor the Developer’s interest in the Project or any Component thereof, shall be assigned, mortgaged, pledged, encumbered or otherwise transferred, directly or indirectly, by operation of law or otherwise (all of the foregoing, collectively a “Transfer”), without the prior Approval of the Authority, which Approval shall not be unreasonably withheld, conditioned or delayed so long as Developer shall have complied with the terms of this Article 14, as applicable.   SECTION 14.2.  Permitted Transfers.  (a) Notwithstanding the prohibitions set permitted without prior Approval of the Authority:   (i)                                     a Transfer to an Affiliate of either Mills or Mack-Cali solely for the purpose of owning, developing, constructing, financing, leasing, operating and/or managing the Project, the Project Site and/or a Component under this Agreement, provided that such entity shall have promptly following formation executed and delivered to the Authority (A) evidence   67   reasonably satisfactory to the Authority of the due formation and identity of the constituent members of such Affiliate, (B) a Component Agreement or other written assumption of all or a portion of the obligations and liabilities of Developer hereunder in form and substance reasonably satisfactory to the Authority, (C) if applicable, a Component Lease executed and delivered in accordance with and subject to the terms of this Agreement, and (D) completed documents required pursuant to Section 19.4 hereof, with contents reasonably acceptable to the Authority; or   (ii)                                  a mortgage or mortgages (including a deed or deeds of trust or other security instruments) granted to Project Lender(s) in connection with Project Indebtedness, including any Transfer to the holder of a mortgage (or deed of trust or other security instrument) securing Project Indebtedness in connection with a foreclosure of a mortgage or exercise of remedies under other security instruments or a deed in lieu of foreclosure or to any purchaser at any foreclosure sale under such Project Indebtedness; provided however, any purchaser at a foreclosure sale or any successor in interest from the holder of the mortgage (or deed of trust or other security instrument) that shall acquire title through foreclosure or deed in lieu of foreclosure shall, as a condition to exercising the rights of Developer under this Agreement,  execute a recognition and estoppel or other agreement in form reasonably acceptable to the Authority in which such holder or successor agrees to be bound by the terms and conditions of this Agreement.   (iii)                               any lease, license or other occupancy or similar agreement with a Tenant or operator, however styled or denominated, for all or any portion of the Project with occupancy to occur following issuance of a Certificate of Completion for the relevant portion of the Project subject to such lease, license, occupancy or other agreement;   (iv)                              Transfers of ownership interests in Developer, or their existing respective direct or indirect equity owners, provided that Mills or Mack-Cali shall retain Control of the Developer following such Transfer;   (v)                                 Transfers that are required in order to protect The Mills Corporation’s or Mack-Cali Realty Corporation’s status as a Real Estate Investment Trust under the Internal Revenue Code (“REIT”);   (vi)                              Transfer as a result of (A) a change in ownership or Control of Developer, The Mills Corporation, The Mills Limited Partnership and/or Mack-Cali Realty Corporation and/or Mack-Cali Realty, L.P. (including as a result of change in Control, by operation of law or otherwise) occurring in connection with the merger, acquisition or consolidation of The Mills Corporation and/or Mack-Cali Realty Corporation or (B) the sale of all or substantially all of their respective assets, as the case may be.   The foregoing are referred to in this Agreement as “Permitted Transfers”.  In addition to any other documentation required pursuant to the terms of this Agreement, to the fullest extent practicable, the Developer shall deliver written notice of a Permitted Transfer (together with all other documents required in connection with the transfer enumerated above) not less than fifteen (15) days prior to the effective date of such Permitted Transfer.  To the extent fifteen (15) days   68   advance written notice is not practicable, notice of such Permitted Transfer shall be provided as soon as practicable and in any event no later than contemporaneously with such Permitted Transfer.   (b)                                 Notwithstanding the provisions of Section 14.1, changes in the ownership of the Developer to admit entities who wish to acquire an equity interest in the Developer shall not constitute a Transfer hereunder so long as such Transfer does not result in a change in Control of the Developer.  However, in such event, the Developer shall provide written notice to the Authority setting forth the name of the entity that has purchased such equity interest in the Developer as provided in Section 14.2(a) above.   SECTION 14.3.  Involuntary Transfers; Bankruptcy.  (a) Successors.  Upon any transfer or assignment of this Agreement or the development rights granted hereunder in fact or by operation of law, as a result of any bankruptcy or insolvency proceeding, to any Successor, such Successor shall execute, acknowledge and deliver to the Authority an agreement in form and substance satisfactory to the Authority whereby such Successor shall agree to assume all of the covenants and agreements set forth in this Agreement on the part of Developer to be performed, and whereby such Successor shall expressly agree that all of the provisions of this Article shall, notwithstanding such assignment, continue to be binding upon it with respect to all future assignments and transfers.  For purposes of this Agreement, a “Successor” means any entity assuming the obligations of Developer under this Agreement or otherwise acquiring an interest in and to the development rights either separately or in connection with the acquisition of the goodwill and all or substantially all of the other property and assets of the Developer, or assuming all or substantially all of the Developer’s liabilities (including the liabilities of Developer hereunder); provided however, that such assignment shall not be effected with the primary intent of subverting or avoiding the restrictions and prohibitions set forth in this Article.   (b)                                 Bankruptcy.  In the event that Developer shall file a petition under the Bankruptcy Code or if any involuntary petition under the Bankruptcy Code is filed against Developer, and Developer assumes this Agreement and proposes to assign this Agreement pursuant to the provisions of the Bankruptcy Code to any Person who shall have made a bona fide offer to accept an assignment of this Agreement on terms acceptable to Developer, then notice of such proposed assignment shall be given to the Authority by the Developer no later than twenty (20) Business Days after acceptance by the Developer of such bona fide offer, but in any event no later than ten (10) Business Days prior to the date that Developer shall make application to a court of competent jurisdiction for authority and approval to enter into such assignment and assumption.  Such notice shall set forth (i) the name and address of such Person, (ii) all of the terms of such offer, and (iii) adequate assurance of future performance by such Person under this Agreement as set forth in Section 14.3(c) below, including without limitation, the assurance referred to in Section 365(b)(1) of the Bankruptcy Code.   (c)                                  Adequate Assurance.  The term “adequate assurance of future performance” as used in this Agreement shall mean that any proposed assignee shall, among other things, (i) deliver to the Authority financial statements of such assignee (or the Person or Persons having Control over such assignee) for the prior three (3) fiscal years, as finally determined after an audit and certified as correct in all material respects by a certified public accountant, which financial statements shall disclose a net worth determined in accordance with   69   generally accepted accounting principles substantially equal to the net worth determined in accordance with generally accepted accounting principles and adjusted for the effect of inflation, of The Mills Corporation on the Effective Date; (ii) provide evidence reasonably satisfactory to the Authority that neither The Mills Corporation nor Mack-Cali Realty Corporation nor any of their Affiliates shall have a financial, beneficial or other interest in the proposed assignee and (iii) provide such other information or take such action as the Authority, in its reasonable discretion, shall determine is reasonably necessary to provide adequate assurance of future performance by such assignee of its   SECTION 14.4.  TRANSFERS FOR WHICH AUTHORITY APPROVAL REQUIRED.  (A) REQUEST FOR TRANSFER. IN THE EVENT THAT THE DEVELOPER PROPOSES TO TRANSFER THIS AGREEMENT OR ITS INTEREST IN THE PROJECT (OR ANY PROJECT COMPONENT OR COMPONENT PART) OR ITS LEASEHOLD INTEREST IN THE PROJECT SITE (OR ANY PROJECT COMPONENT SITE OR COMPONENT PART) OTHER THAN IN CONNECTION WITH A PERMITTED TRANSFER, THE AUTHORITY’S PRIOR WRITTEN APPROVAL SHALL BE REQUIRED, WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED.  IN SUCH EVENT, THE DEVELOPER SHALL PROVIDE WRITTEN NOTICE TO THE AUTHORITY AT LEAST THIRTY (30) DAYS BUT NOT MORE THAN ONE HUNDRED FIFTY (150) DAYS PRIOR TO THE DATE OF THE PROPOSED TRANSFER.  TOGETHER WITH SUCH NOTICE, THE DEVELOPER AND THE PROPOSED TRANSFEREE (“PROPOSED TRANSFEREE” AND, IF APPROVED PURSUANT TO THIS SECTION 14.4, A “TRANSFEREE”) SHALL SUBMIT TO THE AUTHORITY:   (I)                                     A WRITTEN REQUEST FOR APPROVAL OF THE PROPOSED TRANSFEREE (A “TRANSFEREE APPLICATION”) EXECUTED BY THE DEVELOPER AND THE PROPOSED TRANSFEREE SETTING FORTH THE FULL AND CORRECT LEGAL NAME OF THE PROPOSED TRANSFEREE AND ANY ASSUMED NAMES USED BY SUCH PROPOSED TRANSFEREE DURING THE PRECEDING FIVE (5) YEARS, THE PRINCIPAL PLACE OF BUSINESS OF THE PROPOSED TRANSFEREE, THE NAME, MAILING ADDRESS, TELEPHONE AND FAX NUMBER AND E-MAIL ADDRESS OF THE PROPOSED TRANSFEREE’S CONTACT PERSON TO WHOM THE AUTHORITY SHALL DIRECT COMMUNICATIONS AND INQUIRIES AND STATING THE PROPOSED DATE AND GENERAL TERMS OF THE PROPOSED TRANSFER.   (II)                                  FINANCIAL STATEMENTS, INCLUDING PROFIT AND LOSS AND CASH FLOW STATEMENTS PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES CONSISTENTLY APPLIED FOR THE THREE (3) FISCAL YEARS OF THE PROPOSED TRANSFEREE NEXT PRECEDING THE DATE OF SUBMISSION OF THE TRANSFEREE APPLICATION, OR, IF THE LAST PRECEDING FISCAL YEAR HAS ENDED LESS THAN ONE HUNDRED TWENTY (120) DAYS PRIOR TO THE DATE OF THE TRANSFEREE APPLICATION AND FINANCIAL STATEMENTS FOR SUCH YEAR HAVE NOT BEEN COMPLETED, FINANCIAL STATEMENTS FOR THE THREE (3) FISCAL YEARS NEXT PRECEDING THAT YEAR SHALL BE PROVIDED, WHICH FINANCIAL STATEMENTS, IN EACH CASE, SHALL HAVE BEEN REVIEWED BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT AND CERTIFIED BY THE CHIEF FINANCIAL OFFICER OF THE PROPOSED TRANSFEREE TO BE TRUE AND COMPLETE IN ALL MATERIAL RESPECTS.  IN THE EVENT THAT A PROPOSED TRANSFEREE CANNOT DEMONSTRATE SUCH OPERATING HISTORY, THEN EVIDENCE OF SUCH OPERATING AND/OR MANAGEMENT EXPERIENCE BY THE PROPOSED TRANSFEREE OR THE PRINCIPAL OWNERS/OPERATORS OF THE PROPOSED TRANSFEREE WITH RESPECT TO SIMILAR PROPERTIES WHICH SHALL BE REASONABLY ACCEPTABLE TO THE AUTHORITY.   (B)                                 APPROVAL OF TRANSFER DOCUMENTS.  NO TRANSFER FOR WHICH THE APPROVAL OF THE AUTHORITY IS REQUIRED UNDER THIS SECTION 14.4 SHALL OCCUR UNTIL SUCH TIME AS THE AUTHORITY HAS APPROVED FULLY EXECUTED DOCUMENTS EVIDENCING SUCH TRANSFER WHICH ARE REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE AUTHORITY, INCLUDING WITHOUT LIMITATION, THE FOLLOWING ITEMS (COLLECTIVELY, THE “TRANSFER DOCUMENTS”):   70   (i)                                     If applicable, Component Agreement and Component Lease relating to the Component Interest to be transferred, executed by the Authority and the Transferee (which shall be a Component Entity), by virtue of which the Transferee recognizes and assumes the obligations of the Developer under this Agreement and the Project Agreements as they relate to the Component Interest being transferred.   (ii)                                  In the event of a Component Lease being entered into pursuant to Section 9.4(g) hereof, a Component Lease executed by the Developer and the Transferee.   (iii)                               To the extent not previously provided or otherwise required to be provided hereunder or to the extent any previously provided information or materials are no longer accurate, (A) a statement providing the Transferee’s full and accurate legal name, any assumed name under which it intends to operate, and its notice address, (B) if an entity, its state of formation, copies (bearing filing stamps, as appropriate) of its formation and operating documents, (C) the names and addresses of each of the executive officers and directors or, partners or members, as applicable, of the Transferee, (D) evidence of the authority of the entity to assume and perform the obligations of the Developer under the Component Agreement and of the individual acting for such entity to so act, and (E) a certificate of existence and good standing from the Secretary of State of its state of formation, and, if doing business in New Jersey, a certificate from the Secretary of State of the State, establishing its qualification to do business in the State.   (iv)                              Completed documents required pursuant to Section 19.4 hereof, with contents reasonably acceptable to the Authority.   (c)                                  Release of Developer.  A Transfer to a Transferee Approved by the Authority pursuant to this Section 14.4, as evidenced by the Authority’s Approval in writing of the Transfer Documents, shall release the Developer from any further obligation under this Agreement or the Ground Lease as to the Component Interest transferred.  Following such Transfer, the Authority shall look solely to the Component Entity for performance of the obligations of such Entity with respect to the applicable Component.  The Authority shall execute such documentation as may reasonably be requested by the Developer to evidence such discharge and release.  Notwithstanding the foregoing, a Component Lease executed by the Developer pursuant to Section 9.4(g) hereof shall not release the Developer hereunder.   (d)                                 No Transfers Prior to Ground Lease Closing Date. Notwithstanding the foregoing to the contrary, prior to the Ground Lease Closing Date, the Developer shall not convey, transfer, hypothecate or grant, in whole or in part, any of the rights granted hereunder to persons or entities that are not owned or Controlled directly or indirectly by The Mills Corporation or Mack-Cali Realty Corporation.   ARTICLE 15 ENVIRONMENTAL MATTERS   SECTION 15.1.  Acknowledgments; Allocation of Responsibility; Waiver.  (a) Acknowledgements; Allocation of Responsibility.  Subject to the terms and conditions of this Article, the Authority and Developer acknowledge and agree that:   71   (i)                                     Developer has been provided certain documentary and other due diligence information and an opportunity to conduct certain investigations of the Project Site as authorized by the Authority.   (ii)                                  Developer shall be solely responsible for the performance of any and all Remediation on, in or under the Project Site and any other properties to which Releases of Hazardous Materials have migrated, or shall migrate, from the Project Site, as required by any Environmental Law, including, without limitation Remediation arising out of the Authority’s Environmental Responsibility hereunder, provided however, that the Authority shall pay the Authority’s Environmental Remediation Contribution, if any is determined to be due pursuant to the terms of this Article.   (iii)                               The Authority and the Developer shall cooperate and consult with each other at all relevant times so that the Developer may perform any and all necessary Remediation in a timely and cost-effective manner, but without creating Developer or Authority Interference and without intentionally causing violation of any obligation of the Authority under any Environmental Law.  The Developer may perform the Remediation under the voluntary cooperation program of the NJDEP pursuant to a memorandum of agreement (“MOA”). The Authority shall have the right to review in advance and Approve each of the steps in the Remediation (to the extent arising out of, or relating to, the Authority’s Environmental Responsibility) that the Developer proposes to present to the NJDEP and to receive copies of all communications to and from the Developer, its environmental consulting firm and the NJDEP.  Nevertheless, it is agreed that the Developer may propose to the NJDEP to (A) remove or otherwise remediate Hazardous Materials at the Project Site only to the extent necessary to meet its nonresidential criteria for soils; (B) establish a CEA for groundwater; and (C) install and maintain engineering and institutional controls consistent with such proposal.  If the NJDEP shall approve and the Developer shall properly perform such Remediation, the Authority will execute and file a deed in the land records of Bergen County giving notice that the Project Site is subject to Land Use Restrictions.  The Developer’s obligations to maintain engineering and institutional controls and any monitoring or other continuing obligations shall remain in effect, notwithstanding the issuance of a no further action letter and/or covenant not to sue by the NJDEP.   (iv)                              Notwithstanding anything in this Agreement to the contrary, the Authority shall be responsible, at its sole cost and expense, to perform any and all activities relating to or in any way associated with addressing a natural resource damage claim by any Governmental Body that arises out of the Authority’s Environmental Responsibility.   (b)                                 Waiver of Other Remedies.  This Article 15 together with the indemnities provided in Article 17 are intended by the Parties as the exclusive repository of the Parties’ respective rights and obligations with respect to any Environmental Claim or Remediation required under any Environmental Law.  Except as to the right to enforce the terms and conditions of this Agreement, the Authority and Developer each waives, relinquishes, and agrees to forbear from exercising any rights, claims, or causes of action for any loss, contribution, indemnity, damages, or other harm with respect to the Project Site, either Party may have or that   72   may hereafter accrue against the other under any Environmental Law, known and unknown, including without limitation the Spill Act, CERCLA, RCRA and the common law.   SECTION 15.2.  Developer Initiated Data.  (a) In order to more fully inform itself regarding any Release of Hazardous Materials (i) with respect to any area of the Project Site identified in the Master Plan as a location for proposed construction or demolition, Developer, at its sole cost and expense, may conduct such investigations, sampling and other assessments as it deems appropriate and obtain environmental data from an environmental laboratory certified by the NJDEP for the test performed at any and all locations shown on the Conceptual Project Site Plan or the Master Plan, as the case may be, and the methodology of such sampling shall be performed in accordance with the NJDEP Technical Regulations and (ii)  in any other areas of the Project Site that may be the Authority’s Environmental Responsibility, Developer, at its sole cost and expense, may conduct such investigations, sampling and other assessments as it deems appropriate and obtain environmental data from an environmental laboratory certified by the NJDEP for the test performed at any and all locations on the Project Site, and the methodology of such sampling shall be performed in accordance with the NJDEP Technical Regulations; provided however, that, in the event that such investigations, sampling and other assessments reveals the Release of Hazardous Material that is the Authority’s Environmental Responsibility, then the costs associated with such activities shall be part of the Authority’s Environmental Remediation Contribution.   (b)                                 Promptly upon receipt, and in no event more than five (5) days after receipt, Developer shall provide a copy to the Authority of such data or other reports obtained pursuant to subsection (a) above.  Except as otherwise provided in this Article, the Authority shall not be required to undertake any Remediation or other actions in response to any such data or other report that are not otherwise required by NJDEP or any other Governmental Body, but shall provide evidence to Developer that the Authority has reported to the NJDEP any information in such reports that the Authority is required by Environmental Laws to report to the NJDEP.  Nothing in this Section shall preclude or require, or be deemed to preclude or require, Developer from making any notification to any Governmental Body .   SECTION 15.3.  Developer’s Remediation.  (a) Developer shall have the responsibility to comply with all Environmental Laws subject to the payment of   (b)                                 Developer shall proceed in a commercially reasonable manner with any Remediation as the NJDEP may require, and shall use its commercially reasonable efforts to obtain for the Project Site an NFA and, if legally available, a covenant not to sue; provided however, the Developer shall be excused from obtaining a covenant not to sue if and to the extent the statute or regulations applicable to the issuance of such covenant are amended or modified such that a covenant not to sue is not legally available or would enlarge the scope of the Developer’s Environmental Responsibility beyond that otherwise required by this Article.   (c)                                  Developer shall promptly upon receipt and in no event more than five (5) Business Days thereafter, provide to the Authority copies of any testing results, reports,   73   correspondence and notices to or from Developer relating to or in connection with the Environment.   (d)                                 Until the Project Site has received all required NFA’s or equivalent written acknowledgment from a Governmental Body to the effect that the Project Site, including all environmental media on, at, in, under or from the Project Site, does not require any further Remediation, the Developer shall perform any required Remediation, including ongoing monitoring, inspection, reporting and maintenance requirements of any Land Use Restrictions.  In the event the groundwater under or from the Project Site is the subject of a Classification Exception Area (“CEA”) designation by the NJDEP, Remediation of such groundwater shall remain the Developer’s responsibility, until such time as such CEA is terminated or made permanent without requirement for any monitoring or active Remediation by the Developer or any Person.   (e)                                  In performing any Remediation at or with respect to the Project Site after the Effective Date, the Developer shall:   (i)                                     Perform, and cause all consultants, contractors, and other agents retained by the Developer to perform, all such Remediation in a workmanlike manner and consistent with all applicable Environmental Laws and Legal Requirements.   (ii)                                  Comply with all Environmental Laws and Legal Requirements applicable to the implementation of such Remediation   (iii)                               Provide the Authority with a reasonable opportunity to review in advance and comment upon any work plans, reports or any other submissions to any Governmental Body respecting any Remediation that arises out of the Authority’s Environmental Responsibility and to consult with the Developer, and the Developer shall incorporate such comments of the Authority to avoid or minimize any Developer Interference.  Developer shall give the Authority an opportunity to review and comment prior to making any submission to any Governmental Body; provided however, that the Authority shall provide its comments to the Developer as quickly as reasonably possible, but in no event more than five (5) Business Days after receipt of a document from the Developer, except as otherwise provided in Section 11.6 hereof.  Developer may submit documents to the appropriate regulatory agency if comments have not been provided by the Authority at the expiration of the aforementioned five (5) day period.   (iv)                              Implement Remediation in such manner, at such times and with such advance notice as to minimize any Developer Interference and, in the event of an Interference, the Parties shall consult in order to minimize or avoid any such Interference, and the Authority’s written consent, which shall not be unreasonably withheld, conditioned or delayed shall be required for the installation of any Remediation Equipment to be permanently installed in or on the Project Site or for any Remediation Equipment that may be temporarily installed in proximity to any building within the Sports Complex.   74   (v)                                 Provide the Authority with copies of all documents relating to Remediation that the Developer (A) submits to any Governmental Body in connection with any Remediation proposed or implemented by the Developer at the same time the Developer submits such documents to such Governmental Body, and (B) receives from any Governmental Body in connection with the Project Site, within five (5) Business Days from the date of the Developer’s receipt of the same.   (vi)                              Be solely responsible for the management, transportation, treatment, handling, and disposal of all wastes generated at the Project Site in connection with any Remediation, including, without limitation, completion of all manifests and other shipping and disposal documents in accordance with Environmental Law and the identification of the Authority as the “generator” of such wastes on all such manifests and documents and other shipping and disposal documents.  The Redeveloper shall furnish to the Authority all manifest copies and other information necessary to enable the Authority to fulfill its obligations as generator.   (vii)                           Not develop any permanent hazardous or solid waste facilities at or within the Project Site (for example landfills or impoundments); provided however, nothing in this subsection shall preclude Developer from using or reusing excavated soils as fill, backfill, or otherwise on the Project Site subject to the requirements of the NJDEP soil reuse policies and procedures.   (viii)                        Implement any required mitigation as a result of dredging, filling, use, encroachment, injury or damage to wetlands, or other natural resources on any portion of the Project Site.   (ix)                                Locate and remove as soon as practicable, or relocate on the Project Site to a location reasonably acceptable to the Authority, all Remediation Equipment and Hazardous Materials and other wastes generated at the Project Site, including soil piles and other visible evidence of Remediation, where their continued presence is unsightly, or constitutes an Developer Interference or health or safety hazard.   (x)                                   Promptly upon completion of any required Remediation or phase of Remediation, and if permitted by the NJDEP, fill and grade all test holes, close any monitoring well no longer required in connection with the Remediation in compliance with applicable Environmental Law, remove all associated Remediation Equipment, pave or repair any existing groundcover and regrade, seed, or landscape and otherwise restore the Project Site to the maximum extent practicable to the prior existing conditions consistent with any required Remediation.   (xi)                                Install all future wells in connection with the Remediation with flush mounting and locks.   (f)                                    The Authority shall reimburse the Developer for the Authority’s Environmental Remediation Contribution either through: (i) payment by the Authority to the Developer for the Authority’s Environmental Remediation Contribution arising out of the   75   Authority’s Environmental Responsibility within thirty (30) days from the date of receipt of all documentation supporting the Developer’s request for payment, or (ii) offsetting such amount from (A) the Development Rights Fee (to the extent the Ground Lease Closing Date has not occurred), or (B) to the extent that the Ground Lease Closing Date has occurred, any payments then due and payable or to be paid by the Developer during the term of this Agreement or the Ground Lease (including specifically and without limitation, the Ground Rent and/or the Developer PILOT Payments).  The amount of such offset shall be equal to the costs paid by the Developer to perform Remediation attributed to the Authority’s Environmental Responsibility (together with interest thereon until fully paid at the Overdue Rate, plus the reasonable and ordinary costs of collection, including without limitation, reasonable attorneys fees).  In the event that this Agreement is terminated pursuant to the terms hereof, as the case may be, and Developer has incurred Remediation costs that constitute a part of the Authority’s Environmental Remediation Contribution, then the Authority shall reimburse the Developer in accordance with Section 15.3(f)(i).  If at the time that the Developer is obligated to pay the Development Rights Fee, additional Remediation attributed to the Authority’s Environmental Responsibility is necessary, then the Authority shall deposit Five Hundred Thousand Dollars ($500,000) in escrow to be held by the Developer.  The Developer may draw from this amount to pay for Remediation costs until Remediation is completed and all NFAs are issued for the Project Site.  In the event that this initial escrow amount is depleted, the Authority shall deposit an additional amount of Five Hundred Thousand Dollars ($500,000) in escrow for reimbursement of costs incurred by the Developer that are the Authority’s Environmental Remediation Contribution.  The Authority shall be obligated to replenish the escrow fund, beyond the amounts specified above, on a continuous basis, in amounts as agreed to by the parties, until all NFAs are issued.  Any remaining balance held in escrow shall be returned to the Authority.   SECTION 15.4.  Historic Fill Material.  Notwithstanding anything in this Agreement to the contrary, in the event that the NJDEP determines that all or portions of the Project Site contains Historic Fill Material and that an engineering control in the form of a cap is appropriate Remediation for such material, then the costs for construction of such cap shall not constitute part of the Authority’s Environmental Remediation Contribution and shall be paid for by the Developer; provided however, that in the event that NJDEP determines that an area within Historic Fill Material requires Remediation other than capping, and such Remediation is not the Developer’s Environmental Responsibility, then the costs associated with such Remediation shall remain as the Authority’s Environmental Contribution.  Further, in the event that NJDEP determines that maintenance and monitoring activities are necessary in order to ensure protectiveness of the cap, then such activities shall be undertaken and paid for by the Developer.   SECTION 15.5.  Environmental Insurance.  (a) Contractor’s Environmental Liability Insurance.  (i) Developer shall cause the Project Contractors engaged for the Remediation and the contract(s) for construction of the Project Improvements, if Hazardous Material(s) exist where such improvements are proposed, to obtain, prepay in full for, and deliver to the Authority an environmental liability insurance policy(ies) reasonably acceptable to the Authority with respect to the Project Site for environmental investigation and clean-up costs for any releases of pollutants or contaminants, as defined in the policy(ies), that may occur on, over or under the Project Site or may be emitted, discharged or leaked from the Project Site resulting from the Remediation of the Project Site and construction of the Project Improvements or the applicable   76   Phase thereof.  The term of such policy(ies) shall commence upon the earlier of (A) Developer’s first acquisition of an interest in the Project Site or (B) commencement of the earlier of the Project Improvements and the Remediation, and continue until the issuance of the final Completion Certificate for the Project Improvements.  Such policy shall provide coverage (including legal defense costs) for bodily injury, property damage, and environmental cleanup costs on a claims-made basis, with a deductible or self-insured retention not greater than Twenty-Five Thousand Dollars ($25,000) per occurrence.  Such insurance policy shall be obtained from an insurer admitted to do business in New Jersey or a surplus lines insurer reasonably acceptable to the Authority.  Such insurance policy shall name the Authority Indemnified Parties and the Developer as additional named insured persons and shall require the written consent of the Authority for cancellation by the Developer.  The environmental liability insurance to be maintained pursuant to this Section 15.5(a) shall have occurrence limits of not less than $5,000,000 per occurrence and an aggregate of not less than $5,000,000.   (b)                                 Authority Approval.  The Authority shall have the right to reasonably approve the form and substance of all insurance policies required to be provided pursuant to this Section.   SECTION 15.6.  No Third-Party Rights.  Nothing in this Article 15 shall be deemed to create any rights of contribution or subrogation in any insurer or third party, or any third-party beneficiary rights, provided, however, such rights shall inure to Affiliates, as applicable.   SECTION 15.7.  Effect on Indemnities.  Nothing in this Article 15 shall alter or limit, or be deemed to alter or limit, the indemnities of the Parties as provided in Article 17 hereof.   SECTION 15.8.  Survival.  The provisions of this Article 15 shall survive the termination of this Agreement and shall expire fifteen (15) years after the Developer has provided the Authority with an NFA or NFAs for the entire Project Site and a covenant not to sue, if applicable, under ISRA; provided however, that if this Agreement is terminated, then the Developer’s obligation to perform Remediation under this Agreement that arises out of the Authority’s Environmental Responsibility or relates to capping Historic Fill  Material, as well as maintaining and monitoring such cap, shall likewise terminate and the Authority shall within thirty (30) days of receipt of all documentation from Developer evidencing incurrence of Remediation costs reimburse the Developer for all such costs that are the Authority’s Environmental Remediation Contribution.  Notwithstanding anything herein to the contrary, the Authority’s Environmental Remediation Contribution shall not include costs associated with capping Historic Fill Materials.  Notwithstanding termination of this Agreement, the Developer shall be obligated to complete Remediation associated with the Developer’s Environmental Responsibility.  The foregoing provisions shall be equally applicable with respect to any Component (or Phase thereof) upon provision by the Developer of an NFA for such Component (or Phase thereof) and a covenant not to sue, if applicable, with respect to such Component (or Phase).   SECTION 15.9.  Environmental Representations and Warranties by the Authority.  Except as set forth in Schedule 15.9 hereof, the Authority hereby represents and warrants that, to the best of its knowledge:   77   (i)                                     The Sports Complex is not in violation of any Environmental Law.   (ii)                                  The Authority does not own, operate or lease any property which a Governmental Body has demanded to be Remediated of any Hazardous Material and which has not been Remediated of such Hazardous Material.   (iii)                               There is no federal or State lien as referred to in CERCLA, the Spill Act or similar law that has attached to the Authority property.   (iv)                              Except for Remediation undertaken by the Authority and funded by the federal or State Government, there has been no federally or State funded removal or remedial action at the Sports Complex.   (v)                                 No Section 104 information request or similar request under applicable State law, such as the Spill Act, has been issued to the Authority pertaining to the Sports Complex.   (vi)                              The Authority has not received written notice of intention to commence suit pertaining to the Sports Complex pursuant to the New Jersey Environmental Rights Act, N.J.S.A. 2A:35A-1, et seq., the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1, et seq., (as amended by the Clean Water Enforcement Act, P.L. 1990, c. 38) or the Federal Water Pollution Act, 33 U.S.C. §1251 et seq.   (vii)                           With the exception of applications filed for Development Approvals relating to the Project, there are no pending applications for any environmental approvals or permits with respect to the Project Site or the business conducted at the Project Site.   (viii)                        No underground storage tank exists on the Project Site.   ARTICLE 16 REPRESENTATIONS AND WARRANTIES   SECTION 16.1.  Representations and Warranties by Developer.  (a) Developer hereby represents and warrants the following to the Authority for the purpose of inducing the Authority to enter into this Agreement and to consummate the transactions contemplated hereby, all of which shall be true as of the date hereof:   (i)                                     Formation.  Developer is a limited partnership duly formed, validly existing and in good standing under the laws of the State of Delaware, and is qualified to do business under the laws of the State of New Jersey, and has all requisite partnership power and authority to carry on its business as now conducted and as contemplated by this Agreement will be conducted, and to enter into and perform its obligations under this Agreement.   (ii)                                  Partners.  As of the Effective Date, (A) Meadowlands Mills Limited Partnership and Mack-Cali Meadowlands Special L.L.C. are general partners of the   78   Developer, with Meadowlands Mills Limited Partnership, the managing general partner of the Developer, and (B) Meadowlands Mills Limited Partnership and Mack-Cali Meadowlands Entertainment L.L.C. are the limited partners of Developer.   (iii)                               Legal Authority; Power.  Developer has the legal power, right and authority to (A) enter into this Agreement and the instruments and documents referenced herein to which Developer is a party, (B) consummate the transactions contemplated hereby, (C) take any steps or actions contemplated hereby, and (D) perform its obligations hereunder.   (iv)                              Execution; No Violation.  This Agreement has been duly executed by Developer, and is valid and legally binding upon Developer and enforceable in accordance with its terms on the basis of the laws presently in effect and the execution and delivery hereof and will not violate the limited partnership agreement or other formation or operating documents of the Developer or result in a breach or constitute a default under or violate the terms of any indenture, agreement or other material instrument to which Developer is a party or by which the Developer or its material assets may be bound or affected.   (v)                                 No Pending Litigation.  There is no pending, or to the best of Developer’s knowledge (after reasonable inquiry) threatened, litigation that would prevent Developer from performing its duties and obligations hereunder or have a material adverse effect on the financial condition or business of the Developer.  There are no outstanding judgments against the Developer that would have a material adverse affect upon the assets or property of the Developer or which would materially impair or limit the ability of the Developer to enter into or carry out the transactions   (vi)                              Financial Matters.  Developer has the capability of obtaining the requisite debt and equity financing in an amount sufficient for the construction, development and operation of the   (vii)                           No Conflict.  This Agreement is not prohibited by and does not conflict with any agreements, instruments, judgments or decrees to which the Developer is a party or is otherwise subject.   (viii)                        No Violation of Laws.  The Developer has received no notice as of the date of this Agreement asserting any non-compliance in any material respect by the Developer with applicable statutes, rules and regulations of the United States of America, the State of New Jersey, the State of Virginia or of any other state, municipality or agency.  The Developer is not in default with respect to any judgment, order, injunction or decree of any court, administrative agency or other governmental authority which is in any respect material to the transactions contemplated hereby.   (ix)                                No Speculation.  Developer’s undertakings pursuant to this Agreement are for the purpose of development of the Project and the Project Site and not for speculation in land holding.   79   (x)                                   Project Documents.  The Conceptual Site Plan, Preliminary Traffic and Infrastructure Sequencing Plan, Preliminary Project Sequencing Plan, the Final Traffic and Infrastructure Improvements, the Estimated Wetlands Restoration Amount all as set forth on the exhibits and schedules attached hereto and incorporated herein are based upon reasonable assumptions and fairly present to the Authority the subject matter thereof.   SECTION 16.2.  Representations and Warranties by Authority.  (a) The Authority hereby represents and warrants the following to Developer for the purpose of inducing Developer to enter into this Agreement and to consummate the hereof:   (i)                                     Formation.  The Authority is an instrumentality of the State of New Jersey, and under the Enabling Legislation has all requisite power and authority to enter into and perform its obligations under this Agreement.   (ii)                                  Legal Authority; Power.  The Authority has the legal power, right and authority to (A) enter into this Agreement and the instruments and documents referenced herein to which the Authority is a party, (B) consummate the transactions contemplated hereby, (C) take any steps or actions contemplated hereby, and (D) perform its obligations hereunder.  The Enabling Legislation provides the Authority with sufficient right and power to carry out the Authority’s obligations set forth in the Agreement and the terms and conditions and the respective rights and obligations of the Parties set forth herein are consistent with the Enabling Legislation.   (iii)                               Execution; No Violation or Conflict.  This Agreement has been duly executed by the Authority and is valid and legally binding upon the Authority and enforceable in accordance with its terms on the basis of laws presently in effect and the execution and delivery hereof and will not violate the Enabling Legislation, by-laws or other regulations or documents governing the actions of the Authority or result in a material breach or constitute a material default under or violate the terms of, or conflict with, any indenture, agreement or other instrument to which the Authority is a party or by which the Authority or its material assets may be bound or affected.   (iv)                              No Developer Interference.  The Existing Sports Complex Agreements are the only agreements relating to the use of the Sports Complex facilities in existence as of the Effective Date.  Based upon the Conceptual Site Plan attached hereto as Schedule 6.1(b), and in light of the activities described in the Preliminary Project Sequencing Plan and the Preliminary Traffic and Infrastructure Sequencing Plan, the provisions of the Existing Sports Complex Agreements do not and will not, to the best of the Authority’s knowledge (after diligent inquiry), conflict with the respective rights, duties and obligations of the Parties under this Agreement, nor do such Existing Sports Complex Agreements limit or preclude the Parties’ ability to carry out and perform their respective rights and obligations under this Agreement.   (v)                                 No Pending Litigation.  Except for the matters disclosed on Schedule 16.2(v) hereof, there is no pending, or to the best of the Authority’s knowledge (after   80   reasonable inquiry) threatened, litigation that would prevent the Authority from performing its duties and obligations hereunder or have a material adverse effect on the financial condition or activities of the Authority.  There are no outstanding judgments against the Authority that would have a material adverse effect upon the Project Site or which would materially impair or limit the ability of the Authority to enter into or carry out the transactions   (vi)                              No Violation of Laws.  The Authority has received no notice as of the date of this Agreement asserting non-compliance in any material respect by the Authority with applicable statutes, rules or regulations of the United States of America, the State of New Jersey, or of any other state, municipality or agency.  The Authority is not in default with respect to any judgment, order, injunction or decree of any court, administrative agency or other governmental authority which is in any respect material to the transactions contemplated hereby.   SECTION 16.3.  Indemnification.  This Article shall be subject to the provisions of Section 17.6 and Section 17.7 hereof.   SECTION 16.4.  Incorporation into Agreements.  The representations and warranties set forth in this Article 16 shall be incorporated into the Ground Lease, each Component Lease, and each Component Agreement with such modifications as the context shall require.   ARTICLE 17 INSURANCE; INDEMNIFICATION   SECTION 17.1.  Developer Insurance.  (a) At all times during the term of this Agreement and the Ground Lease, as applicable, Developer shall maintain or cause to be maintained at its own cost and expense or at the cost and expense of its subcontractors, insurance in the form and amounts detailed herein.  All policies shall be placed with insurers reasonably acceptable to Authority, and be rated at least “A” with a financial size category of at least “X” by A.M. Best & Co.   (b)                                 All insurance provided by Developer or its subcontractors, as required by this Article, shall have the Authority added as an additional insured, except for workers compensation and insurance against damage to the Project Site and or the Project by fire or other risk.   (c)                                  Developer shall procure policies for all such insurance for periods of not less than one year and shall deliver to Authority certificates or memoranda and copies of such policies with evidence of the payment of premiums thereon and shall procure renewals thereof from time to time at least thirty (30) days before the expiration thereof.  See Sections 17.2-.4 hereof for the type of policies to be obtained.  All policies placed pursuant to this Agreement shall contain provisions that they may not be canceled or materially changed without thirty (30) days prior written notice to Authority.   (d)                                 All premiums on policies referred to in this Agreement shall be paid by Developer.  Certificates representing such policies shall be delivered to the Authority’s Vice   81   President of Risk Management immediately upon receipt from the insurance company or companies.  Certificates and copies of new or renewal policies replacing any policies expiring during the term hereof shall be delivered to Authority at least thirty (30) days before the date of expiration, together with proof satisfactory to Authority that the premiums have been paid by Developer.  Premiums on policies shall not be financed in any manner whereby the lender, on default or otherwise, shall have the right or privilege of surrendering or canceling the policies, provided however, that Developer may pay premiums in installments so long as same does not constitute a default under any Project Indebtedness.   (e)                                  If the Developer shall have secured and maintained the policies of insurance described in this Section in the limits set forth in Section 17.2, Section 17.3 or Section 17.4, as the case may be, and the proceeds of such insurance shall be insufficient to pay the entire cost of the rebuilding, restoration, repair, replacement and alteration work required by the Developer pursuant to this Section, the excess cost shall be borne by Developer.   (f)                                    Developer shall not carry separate insurance (other than personal injury liability insurance) concurrent in form or contributing in the event of loss with that required by this Agreement to be furnished or which may reasonably be required to be furnished by Developer.   (g)                                 Subject to the provisions of this Agreement with respect to Interference and use of the Arena and Arena Site, and except to the extent otherwise provided in the Construction Management Agreement, the Project Operating Agreement and the Declaration, Developer shall be responsible for maintaining the Project Site and the Project in a safe and secure condition at all times.  Developer shall ensure compliance with all federal, State, county and municipal laws, rules and regulations having jurisdiction over the Project Site and/or the Project.   (h)                                 In the event any item of insurance required to be procured by Developer hereunder is not available, or is not available at commercially reasonable rates,  Developer may propose a modification of such requirement and provide the reasons therefore in writing to Authority.  Authority may, at its sole discretion, waive or modify any provision hereunder in light of such request.   (i)                                     If at any time any of the policies shall be or become unsatisfactory to Authority, acting in a reasonable manner, as to form and substance, or if any of the insurers issuing such policies shall be or become unsatisfactory to Authority, acting in a reasonable manner, Developer, upon the written request of the Authority, shall promptly attempt to obtain a new and satisfactory policy in replacement.  With respect to all insurance required to be obtained pursuant to this Agreement, Authority will not find a policy issued by a satisfactory insurer to be unsatisfactory as to form and substance unless it contains an exclusion or omission of coverage not generally included in policies issued for similar projects.  Without limiting the generality of the provisions of this Section, from time to time during the term hereunder, but not more than once every three (3) years, Authority, acting in a reasonable manner, shall have the right to require Developer to raise the limits of the various liability coverages set forth in this section, or   82   to require insurance against other insurable hazards, and Developer shall comply or cause compliance with, any such reasonable request.   (j)                                     Developer shall be responsible for the payment of all amounts not paid by the insurers that issue policies required by Sections 17.2, 17.3 and 17.4 by reason of deductibles, self-insured retentions and aggregate and per-occurrence limits.   SECTION 17.2.  Developer’s Insurance Obligations During the Pre-Construction Period.  Prior to or simultaneous with the execution of this Agreement, the Developer shall deliver to the Authority’s Vice President of Risk Management, certificates of insurance evidencing the insurance policies described in this Section 17.2 and copies of such policies.  The Parties acknowledge that applicable insurance requirements and the certificates thereto have previously been delivered to the Authority pursuant to the Right of Entry Agreement.  These insurance coverages shall remain in effect until the OCIP referenced in Section 17.3 has been reviewed and approved by the Authority (in the exercise of its reasonable discretion).  These insurance requirements apply to all Project Professionals that are retained subsequent to the execution of this Agreement. The Developer shall thereafter deliver certificates evidencing renewal of each policy on or before the date of certificate expiration.   (i)                                     Primary commercial general liability insurance (including contractual coverage) with limits not less than $1,000,000 per occurrence and $1,000,000 in the aggregate, with a $150,000 deductible.   (ii)                                  Excess liability insurance with limits not less than $10,000,000 per occurrence and $10,000,000 in the aggregate providing defense and indemnity immediately upon exhaustion of the underlying primary coverage.  The coverage of the excess liability  policy shall follow the form or otherwise correspond to the form of the primary policy.   (iii)                               Worker’s compensation insurance in accordance with statutory requirements.   (iv)                              Automobile liability insurance providing coverage of not less than $1,000,000 combined single limit for bodily injury and property damage arising out of ownership or use of any vehicle whether or not owned.   SECTION 17.3.  Developer’s Insurance Obligations During The Construction Period.  (a) At all times during the Construction Period, and until the Project is Completed, Developer shall maintain or cause to be maintained at its own cost and expense, the following kinds and the following amounts of insurance with respect to the Project. With regard to Section 17.3(a)(i), (ii) and (iv) below, it is the intent of the Developer to obtain an owner controlled insurance program (OCIP) or an equivalent managed insurance program, subject to availability of pertinent coverages/policies, the ultimate design of which will be subject to review and  approval by the Authority.  The OCIP shall be obtained and delivered to the Authority for review within forty-five (45) days following the Effective Date.  The amount of deductible for each policy will be agreed upon by the Parties prior to the inception of the OCIP.  The Developer   83   agrees that the OCIP (or similarly managed insurance program) will be specific to the Project and will not be sharing limits with other projects.   (i)                                     Commercial General Liability (CGL) in an amount not less than $2,000,000 per occurrence.  The policy shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury and pollution incidents arising from pollutants that are brought on or to the Project Site in connection with construction operations and liability assumed under an insured contract including, but not limited to this Agreement and the Ground Lease.   (ii)                                  Umbrella and/or Excess Liability insurance sufficient to provide total liability limits of $50,000,000 for General Liability, Auto Liability and Employer’s Liability.  The coverage of the excess liability policy shall follow the form or otherwise correspond to the form of the primary policy.   (iii)                               Automobile liability insurance for all owned, non-owned and hired vehicles insuring against bodily injury, including death, and property damage in an amount not less than $1,000,000 per occurrence.   (iv)                              Statutory Worker’s Compensation coverage including Employer’s Liability limits of not less than $1,000,000 each accident for bodily injury by accident and $1,000,000 per employee for bodily injury by disease.   (v)                                 Builder’s Risk insurance covering improvements to the site in an amount not less than the full-completed value of the Project.  The policy shall be written on an “All Risk” form and provide coverage for the perils of Flood and Earthquake, separately in an amount not less than $25,000,000.  The policy shall include,  coverage for debris removal, demolition and increased cost of construction, interruption by civil or military authority and ingress/egress.   (vi)                              Boiler & Machinery insurance covering all boilers and mechanical equipment when connected and ready for use and following electrical, hydrostatic, pneumatic or gas pressure acceptance tests, in an amount not less than $25,000,000.   (vii)                           Coverage offered under the Federal Terrorism Risk Insurance Act of 2002 shall be required, in an amount not exceeding the requirements of the Project Lenders.   (viii)                        Owners Protective Professional Indemnity insurance with a minimum limit of $4,000,000 for each claim and annual aggregate applicable solely to the Project.  The policy shall be endorsed to provide for an extended reporting period on claims for three (3) years past the Final Completion Date and shall include Authority Indemnified Parties as additional insureds.  The Developer shall also furnish (or cause to be furnished) to the Authority evidence reasonably satisfactory to the Authority that any Project Professional with whom it has contracted for the design of the Project carries errors and omissions insurance, with a minimum limit of $1,000,000 for each claim and annual aggregate.   84   The Developer agrees to cause each of the design Project Professionals to name the Authority as additional insured on the respective Project Professionals’ errors and omissions insurance.   (b)                                 Developer shall obtain performance and payment bonds from the Project Contractors in an amount not less that 100% of the full contract value awarded for any and all improvement to the premises. In lieu of bonds, Developer may use Subguard insurance policy.   SECTION 17.4.  Developer’s Insurance Obligations During Post-Construction Period.  It is the intention of the Developer to design the OCIP described in Section 17.3(a) hereof to roll over into the Master Insurance Program at Final Completion of the Project.  The amount of deductible of each policy will be agreed upon by the Parties prior to completion of the OCIP.  The Master Insurance Program, which shall be maintained by the Developer, at its own cost and expense, at all times through the Post-Construction Period until expiration or early termination of the Ground Lease, will include the following policies with respect to the Project:   amount not less than $1,000,000 per occurrence.  CGL insurance shall cover product-completed operations, personal injury and advertising injury and liability assumed under an insured contract including, but not limited to, this Agreement and the Ground Lease.   (ii)                                  Automobile liability insurance for all   (iii)                               Statutory Worker’s Compensation coverage disease.   (iv)                              Umbrella and/or Excess Liability insurance sufficient to provide total liability limits of $100,000,000 for General Liability, Auto Liability, Employer’s Liability.  The coverage of the excess the primary policy.   (v)                                 Property insurance on all buildings, structures, improvements and betterments fixtures, machinery, apparatus and business personal property owned by Developer in an amount not less than the full replacement cost of the insured property.  The policy shall be written on an “All Risk” form and provide coverage for the peril of Flood and Earthquake, separately in an amount not less than $25,000,000.  The policy shall include coverage for debris removal, demolition and increased cost of construction, interruption by civil or military authority and ingress/egress.   (vi)                              Business Interruption, Extra Expense or Loss of Rents insurance in such amounts as shall be reasonably required by the Developer’s Project Lenders.   85   (vii)                           Boiler & Machinery insurance covering all   (viii)                        Coverage available under the Federal Terrorism Risk Insurance Act of 2002 shall be required.   (ix)                                Garagekeeper’s liability insurance with aggregate and per occurrence limits of at least $1,000,000.   SECTION 17.5.  Authority Insurance.  (a) At all times during the Construction Period and until Completion of the Project, the Authority shall maintain or cause to be maintained at its own cost and expense, the types and amounts of insurance with respect to the Meadowlands Complex and the Authority’s operations, as described below, with such variations as shall reasonably be required to conform with customary insurance practice.   (b)                                 The Authority shall furnish the Developer with satisfactory proof that it has obtained the insurance described below from insurance companies or underwriters licensed in the State of New Jersey.  Except for the coverages to be maintained in connection with subsections (i) and (iii) below, the Developer shall be named as an additional insured under the policies listed below.  The Authority shall furnish to the Developer certificates for such insurance showing the type, amount and class of operations insured, and the effective and expiration dates of the policies.  The certificates shall be submitted promptly upon execution of this Agreement.  Specific reference to this Agreement shall be made in all policies.  All insurance certificates provided by the Authority hereunder shall stipulate that the insurance will not be changed or cancelled without giving at least sixty (60) days’ prior written notice to the Developer by certified mail or other commercially acceptable means that provides a receipt as evidence of delivery.   (i)                                     The Authority will maintain, at its expense, commercial property insurance including boiler and machinery coverage on all of its owned buildings and contents as well as on property of others that its contractually obligated to insure. The limits of insurance will be in an amount equal to the replacement value of the buildings and contents owned and the property of others but not greater than $500,000,000. The amount of the deductible maintained, if any, will be based on the impact the deductible has on the insurance premium.  The insurance policy will be issued by an insurance company that has an A rating by AM Best.   (ii)                                  The Authority will maintain, at its expense, commercial general liability and automobile Insurance in limits of $1,000,000 combined single limits for primary exposures and $100,000,000 in excess of the primary policy. The amount of the deductible maintained, if any, will be based on the impact the deductible has on the insurance premium. The insurance policy will be issued by an insurance company that has an A rating by AM Best.  Developer shall be named by endorsement as an additional insured in these policies with respect to occurrences arising from the Authority’s operations at the Sports Complex that are not within the Project Site.   86   (iii)                               The Authority, at its option, will either maintain workmen’s compensation insurance, in statutory limits, or self insure for workmen’s compensation exposures with a retention not greater than $500,000.  Excess workers compensation insurance will be obtained for exposures in excess of the retention.   SECTION 17.6.  Developer Indemnification.  (a) Indemnification by Developer.  The Developer (or the applicable Component Entity, as the case may be) covenants and agrees, at its sole expense, to indemnify, protect, defend and hold the Authority Indemnified Parties harmless from and against all direct and actual (but not arising out of the negligence or misconduct of the Authority or any Authority Indemnified Party), liability, losses, damages, demands, costs, claims, actions, or expenses (including attorneys’ fees and court costs) arising out of, directly resulting in the failure to perform its obligations under or breach of the terms of Sections 3.7, 4.2, 5.3, 10.1, 10.3, 11.11, and 16.1 and Article 20 of this Agreement (each constituting a breach of “Developer Indemnified Claim”).   (b)                                 Implementation of Developer Indemnification Obligations.  In any situation in which the Authority Indemnified Parties are entitled to receive and desire defense and/or indemnification by the Developer (or the applicable Component Entity, as the case may be) for a Developer Indemnified Claim, the Authority Indemnified Parties shall give prompt notice of such Developer Indemnified Claim to the Developer (or the applicable Component Entity, as the case may be).  Failure to give prompt notice to the Developer (or the applicable Component Entity, as the case may be) shall not relieve the Developer (or the applicable Component Entity, as the case may be) of any liability to indemnify the Authority Indemnified Parties, unless such failure to give prompt notice materially impairs the Developer’s (or the applicable Component Entity, as the case may be) ability to defend or materially increases cost due to such delay.  Upon receipt of such notice, the Developer (or the applicable Component Entity, as the case may be) shall resist and defend any action or proceeding arising out of any Developer Indemnified Claim on behalf of the Authority Indemnified Parties, including the employment of a counsel reasonably acceptable to the Authority Indemnified Parties, and the payment of all expenses incurred by the Developer (or the applicable Component Entity, as the case may be) in connection therewith.  The Developer (or the applicable Component Entity, as the case may be) shall have the right to negotiate and consent to settlement of any Developer Indemnified Claim, subject to Approval of the Authority.  All of the Authority Indemnified Parties shall have the right to employ separate counsel in any action arising out of any Developer Indemnified Claim and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of the Indemnified Party unless the employment of such counsel is specifically authorized by the Developer (or the applicable Component Entity, as the case may be), which authorization may be withheld in the Developer’s reasonable discretion.  The Developer (or the applicable Component Entity, as the case may be) shall not be liable for any settlement of any such action effected without its consent, but if settled with the consent of the Developer (or the applicable Component Entity, as the case may be) or if there is a final judgment against the Developer (or the applicable Component Entity, as the case may be) in any such action, the Developer (or the applicable Component Entity, as the case may be) agrees to defend, indemnify and hold harmless the Authority Indemnified Parties from and against any loss or liability by reason of settlement or judgment of a Developer Indemnified Claim.   87   (c)                                  Survival.  This indemnity by the Developer shall survive the expiration or termination of this Agreement and Completion of the Project.   (d)                                 Limitation.  Notwithstanding anything herein to the contrary, the duty of the Developer hereunder to pay any Developer Indemnified Claim shall be reduced by the amount the Authority recovers from any third party regarding such Developer Indemnified Claim.   SECTION 17.7.  Authority Indemnification.  (a) Indemnification by Authority.  Authority covenants and agrees, at its sole expense, to indemnify, protect and hold the Developer Indemnified Parties (which shall also include any Component Entity which has executed a Component Lease and Component Agreement) harmless from and against all direct and actual (but not arising out of the negligence or misconduct of the Developer or any Developer Indemnified Party), liability, losses, damages, demands, costs, claims, actions or expenses (including attorneys’ fees and court costs) arising out of, directly resulting from the Authority’s actions or inactions with respect to perform any of its obligations under or breach of the terms of Sections 3.7, 4.2, 5.3, 10.1, 10.3, 11.11 and 16.2 and Article 20 of this Agreement (each constituting an “Authority   (b)                                 Implementation of Authority Indemnification Obligations.  In any situation in which the Developer Indemnified Parties are entitled to receive and desire defense and/or indemnification by the Authority for an Authority Indemnified Claim, the Developer Indemnified Parties shall give prompt notice of such Authority Indemnified Claim to Authority.  Failure to give prompt notice to Authority shall not relieve the Authority of any liability to indemnify the Developer Indemnified Parties, unless such failure to give prompt notice materially impairs Authority’s ability to defend.  Upon receipt of such notice, the Authority shall resist and defend any action or proceeding arising out of any Developer Indemnified Claim on behalf of the Developer Indemnified Parties, including the employment of counsel reasonably acceptable to the Developer Indemnified Parties, the payment of all expenses and the right to negotiate and consent to settlement of any Authority Indemnified Claim.  All of the Developer Indemnified Parties shall have the right to employ separate counsel in any action arising out of any Developer Indemnified Claim and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of the indemnified party unless the employment of such counsel is specifically authorized by the Authority, which authorization shall not be unreasonably withheld or delayed.  The Authority shall not be liable for any settlement of any such action effected without its consent, but if settled with the consent of Authority or if there is a final judgment against Authority in any such action, Authority agrees to defend, indemnify and hold harmless the Developer Indemnified Parties from and against any loss or liability by reason of such settlement or judgment of an Authority Indemnified Claim.   (c)                                  Survival.  This indemnity by the Authority the Project.   to the contrary, the duty of the Authority hereunder to pay any Authority Indemnified Claim shall be reduced by the amount that the Developer recovers from any third party regarding such Authority Indemnified Claim,   88   and shall be payable only from the Development Rights Fee, the Ground Rent or Developer PILOT Payments.   ARTICLE 18   SECTION 18.1.  Events of Default By Developer.  Any one or more of the following shall constitute a “Developer Event of Default” hereunder, unless such event results from the occurrence of a Force Majeure Event:   (i)                                     Breach of Covenant.  Failure of Developer to observe and perform any material covenant, condition or agreement in this Agreement or any Project Agreement (including without limitation, the Right of Entry Agreement) and continuance of such failure for a period of thirty (30) days, after receipt by Developer of written notice from the Authority specifying the nature of such failure and requesting that such failure be remedied; provided, however, if the breach of any such covenant, condition or agreement is one that cannot be substantially remedied within the thirty (30) days after such written notice has been given, it shall not be an Event of Default as long as Developer is proceeding with due diligence to remedy the same as soon as practicable.   (ii)                                  Insolvency.   to the appointment of a custodian, receiver, trustee or liquidator of all or a substantial part of its assets;   (B)                                a custodian shall have been legally appointed with or without consent of the Authority;   (C)                                Developer shall have made a general assignment for the benefit of creditors, or shall have filed a voluntary petition in bankruptcy or a petition or an answer seeking an arrangement with creditors or has taken advantage of any insolvency law;   (D)                               Developer shall have filed an answer admitting the material allegations of a petition in any bankruptcy or insolvency proceeding;   (E)                                 Developer shall take any action for the purpose of affecting any of the foregoing;   (F)                                 a petition in bankruptcy shall have been filed against Developer and shall not have been dismissed for a period of ninety (90) consecutive days;   (G)                                an order for relief shall have been entered with respect to or for the benefit of Developer under the Bankruptcy Code; or   (H)                               an order, judgment or decree shall have been entered, without the application, approval or consent of subject party by any court of competent   89   jurisdiction appointing a receiver, trustee, custodian or liquidator of Developer or a substantial part of its assets and such order, judgment or decree shall have continued unstayed and in effect for any period of ninety (90) consecutive days.   (iii)                               Liens; Assessments.  Subject to the Developer’s right of offset, as provided in Section 3.3 and Section 5.3(b) hereof, Developer shall fail to pay any Developer PILOT Payments when due, or shall place thereon any encumbrance or lien unauthorized by this Agreement, or shall suffer any levy or attachment to be made, or any materialmen’s or mechanics’ lien, or any other unauthorized encumbrance or lien to attach (other than a Permitted Lien or Project Indebtedness) and such encumbrance or lien is not removed, insured over, bonded or discharged or other provision reasonably satisfactory to the Authority made for such payment, removal, or discharge, within sixty (60) days after written demand by the Authority to do so.   (iv)                              Fraud, Willful Misconduct.  A final, non-appealable decision or other determination by a court of competent jurisdiction that Developer, a partner of Developer or an Affiliate of either, has engaged in fraud in the inducement of this Agreement, the Ground Lease and/or any Project Agreement, or willful misconduct with respect to the Project and such determination results in a Material Adverse Effect to the Authority.   (v)                                 To the extent that the Developer has been released from further obligations under the Ground Lease by reason of the assignment and assumption of the Developer’s obligations hereunder pursuant to the terms of a Component Agreement and Component Lease by a Component Entity, the Authority shall look solely to the performance of the Component Entity for performance of the duties and obligations set forth in this Agreement with respect to the Component that is the subject of such Component Agreement and Component Lease arising after the effective date of the Component Agreement.  As such, the occurrence of an “event of default” under a Component Agreement and a Component Lease shall (1) have no effect on the rights or obligations of the Developer under the terms of this Agreement or the Ground Lease with respect to those Components that have not been released, and (2) shall not constitute a Developer Event of Default hereunder, and the occurrence of a Developer Event of Default under this Agreement or an “event of default” under the Ground Lease with respect to those Components that have not been released shall have no effect on the rights or obligations of the other Component Entities under the terms of their respective Component Agreements and Component Leases and shall not constitute an event of default thereunder.   SECTION 18.2.  Events of Default by Authority.  Any one or more of the following shall constitute an “Authority Event of Default” hereunder, unless such event   (i)                                     Breach of Covenant. Failure of Authority to observe and perform any material covenant, condition or agreement in this Agreement or any Project Agreement and (i) continuance of such failure for a period of thirty (30) days, after receipt by Authority of written notice from the Developer specifying the nature of such failure and requesting that such failure be remedied; provided however, if the breach of any such covenant, condition or agreement is one that cannot be completely remedied within the thirty (30) days after such   90   written notice has been given, it shall not be an Event of Default as long as Authority is proceeding with due diligence to remedy the same as soon as practicable.   (ii)                                  Failure to Deliver Approval.  Failure by the Authority to deliver any consent or Approval required to be delivered by the Authority within the time frame specified in this Agreement or any Project Agreement, and such failure shall continue for a period of fifteen (15) days after written notice from the Developer.  The Developer shall be precluded from sending any notice of an Authority Event of Default resulting from failure by the Authority to deliver any consent or Approval required to be delivered, as provided above, until the Developer has provided a written notice (a “Caution Notice”) to the Authority cautioning that the Authority’s failure to deliver the required consent or Approval will result in the occurrence of an Authority Event of Default.  Such Caution Notice shall provide the date by which such consent or Approval shall be delivered (which shall not be less than five (5) but more than ten (10) days following the date of such Caution Notice) by the Authority in order to avoid the occurrence of an Authority Event of Default described in this Section 18.2(ii).   (iii)                               Insolvency.   (A)                              the Authority shall have applied for or consented to the appointment of a custodian, receiver, trustee or liquidator of all or a substantial part of its assets under the applicable provisions of the Bankruptcy Code or is unable to meet its financial obligations, as they become due;   with or without consent of the Developer;   (C)                                Authority shall have made a general   (D)                               the Authority shall have filed an answer admitting the material allegations of a petition in any bankruptcy or insolvency proceeding;   (E)                                 the Authority shall take any action for the   filed against the Authority and shall not have been dismissed for a period of ninety (90) consecutive days;   with respect to or for the benefit of the Authority under the Bankruptcy Code; or   court of competent jurisdiction appointing a receiver, trustee, custodian or liquidator of the Authority or a substantial   91   part of its assets and such order, judgment or decree shall have continued unstayed and in effect for any period of ninety (90) consecutive days.   jurisdiction that the Authority or any Authority Indemnified Party has engaged in fraud in the inducement of this Agreement, the Ground Lease and/or any Project Agreement, or willful misconduct and such determination results in a Material Adverse Effect to the Project.   SECTION 18.3.  Force Majeure Events.  Notice by the Party claiming the occurrence of a Force Majeure Event shall be sent to the other Party in accordance with the terms hereof as soon as commercially practicable after actual notice of such occurrence has been received by the Party claiming the occurrence of such Force Majeure Event, and the failure to deliver such notice by either Party in accordance with the terms hereof shall constitute a waiver of the Force Majeure Event.  During any Force Majeure Event that affects the Project (or any Component thereof) or the performance of any material obligation under this Agreement, the Parties shall continue to perform their respective obligations with respect to the unaffected portions of the Project and/or Components thereof.  Notwithstanding the foregoing, the unavailability of funds for payment of the costs of the Project shall not constitute a Force Majeure Event.  The existence of a Force Majeure Event shall not prevent a Party from declaring the occurrence of an Event of Default by the Party relying on such Force Majeure Event provided that the event that is the basis of the Event of Default is not a result of the Force Majeure Event.   SECTION 18.4.  Limited Remedies of Authority Upon Developer Event of Default.  Subject to the provisions of Section 8.2 hereof relating to termination of this Agreement prior to the Ground Lease Closing Date and subject to the provisions of Section 18.6 hereof, the Authority may pursue all remedies at law or in equity upon the occurrence of a Developer Event of Default including, without limitation, termination of this Agreement.   SECTION 18.5.  Limited Remedies of Developer Upon Authority Event of Default.  Subject to the provisions of Section 18.6 hereof, the Developer may pursue all remedies at law or in equity upon the occurrence of an Authority Event of Default including, without limitation, termination of this Agreement.   SECTION 18.6.  Limitation on Damages.  (a) Notwithstanding the provisions of this Article 18 to the contrary, the liability of the Developer (as a result of the occurrence of a Developer Event of Default) and/or the liability of the Authority (as a result of the occurrence of an Authority Event of Default) shall be limited to the actual damages incurred by the non-defaulting Party and in no event shall the defaulting Party be liable to the non-defaulting Party for economic or consequential damages.  In furtherance of the foregoing, the non-defaulting Party shall execute a written release evidencing such Party’s release of the non-defaulting Party for any and all claims for economic or consequential damages.   Agreement to the contrary, neither the partners, members nor officers, directors or employees (disclosed or undisclosed) of the Developer shall be liable or responsible for payment of moneys, liabilities or obligations due   92   to the Authority under this Agreement and the Authority shall look solely to the assets of the Developer for satisfaction of any remedy provided under this Agreement or for payments of any amounts due as a result of the occurrence of a Developer Event of Default.   (c)                                  Notwithstanding anything contained in this Agreement to the contrary, neither the partners nor officers, directors or employees of the Authority shall be liable or responsible for payment of moneys due to the Developer under this Agreement and the Developer shall look solely to the assets of the Authority for satisfaction of any remedy provided under this Agreement or for payments of any amounts due as a result of the occurrence of an Authority Event of Default.   SECTION 18.7.  Failure or Delay.  Except as otherwise expressly provided in this Agreement, any failure or delay by either Party in asserting any of its rights or remedies as to any default, shall not operate as a waiver of any default, or of any such rights or remedies, or deprive either such Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies.   SECTION 18.8.  Remedies Cumulative.  Except as expressly provided herein to the contrary, (i) no remedy conferred by any of the provisions of this Agreement 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 now or hereafter existing at law or in equity or by statute or otherwise, and (ii) the election of any one or more remedies shall not constitute a waiver of the right to pursue other available remedies.   ARTICLE 19 MINORITY PARTICIPATION; NON-DISCRIMINATION; DISCLOSURES   SECTION 19.1  Developer Affirmative Action Obligations.  With respect to affirmative action, Developer shall use diligent and commercially reasonable efforts to comply with all terms and conditions imposed on the Project by State law, with the Authority being a third party beneficiary thereof with full rights of enforcement.  The Developer shall submit to the Authority for its review a plan for the engagement or retention of businesses owned and operated by persons of African-American, Latino or Asian descent and businesses owned and operated by women.  Such plan shall be submitted concurrently with (but not as part of) the Master Plan.   SECTION 19.2.  Non-Discrimination.  To the extent that the provisions of N.J.S.A. 10:2-1 through 10:2-4 and the rules and regulations promulgated pursuant thereto are applicable to the Project, the Parties hereby agree to endeavor in good faith to voluntarily make such provisions a part of this Agreement, with such provisions to be binding upon the Parties and included in the Declaration.  In furtherance of the foregoing, neither Party shall discriminate against or segregate any person, or group of persons, on account of race, color, religion, creed, national origin, ancestry, physical handicap, age, marital status, sex, affectional or sexual orientation in the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Project Site.  In addition, neither Party, nor any person claiming under or through Developer or the Authority, shall establish or permit such practice or practices of discrimination or   93   segregation with reference to the selection, location, number, use of occupancy of tenants, lessees, subtenants, sub lessees, or vendees on the Project Site.   SECTION 19.3.  Prevailing Wages.  Except as otherwise provided in any Project Labor Agreement executed by the Developer with respect to the Project, and notwithstanding any inapplicability to the Project, as a matter of law, of the provisions of the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25 et seq., the Parties hereby agree to voluntarily make such provisions a part of this Agreement, with such provisions to be binding upon the parties and included in the Declaration.  Developer represents and warrants to Authority that neither Developer, nor, to its best knowledge, any Project Contractor or Project Professional, is on record with the New Jersey Office of the Commissioner of the Department of Labor as having failed to pay prevailing wages in accordance with the New Jersey Prevailing Wage Act.   SECTION 19.4.  Additional Disclosures.  On the Effective Date, Developer, Mills and Mack-Cali shall each shall execute and deliver to the Authority the following acknowledgments; (a) Moral Integrity Affidavit; the form of which is attached hereto as Schedule 19.4-1; (b) Stockholder Disclosure Form, the form of which is attached hereto as Schedule 19.4-2; and (c) Stockholder Disclosure Form B, the form of which is attached hereto as Schedule 19.4-3.   ARTICLE 20 PUBLICITY; PROMOTIONAL MATERIALS; PROJECT MARKETING PLANS; SIGNAGE   SECTION 20.1.  Publicity; Promotional Materials.  (a) Promotional Materials.  The Parties shall mutually agree as to the protocols to be followed with respect to any public announcements, press releases, advertising, marketing materials or promotional materials (collectively, the “Promotional Materials”) regarding the Project.  Such protocols shall recognize and balance the respective prerogatives of the Parties and the respective obligations of the Parties to comply with differing Legal Requirements, as well as the need for the Developer to promote a lease, manage, operate and finance the Project (or any Component).   (b)                                 Cooperation.  The Parties shall undertake good faith efforts and endeavor to use commercially reasonable efforts to consult, cooperate, and coordinate their activities with respect to publicity and distribution of Promotional Materials with respect to the Project.   SECTION 20.2.  Signage, Advertising and Marketing Rights.  (a) The Parties acknowledge and recognize the importance of signage, advertising and Promotional Materials to the economic and operational success of the Project and the Authority’s operation of the Sports Complex.  Further, the Parties agree that without cooperation, coordination and a mutual understanding of the policies, prerogatives and competitive issues involved, each Party will likely suffer harm (economic or otherwise) and/or the loss of competitive market and other economic benefits.   (b)                                 As such, the Parties shall exercise their respective diligent and commercially reasonable efforts to negotiate (at the earliest practicable date, but in no event later than the Material Conditions Termination Date) such mutually acceptable and beneficial terms   94   and conditions relating to Signage, advertising and marketing and such terms and conditions shall be included in the Project Operating Agreement.   (c)                                  The Project Operating Agreement shall (as to matters of Signage, advertising and marketing) be based upon the following:   (i)                                     The Developer shall have complete discretion with respect to Signage, tenant identification, promotion of the Project (or any Component) and similar activities (whether revenue producing or otherwise), as long as such Signage, etc. is wholly-contained within the interior of the buildings and structures of the Project (or any Component thereof).   (ii)                                  As part of the Master Plan process, the Authority and the Developer shall negotiate mutually acceptable design criteria and aesthetic standards or requirements that will govern exterior Signage, advertising, tenant identification and other revenue-producing materials or activities, to the extent displayed on the exterior of the Project’s buildings or structures, on totem or monument signs, etc.  Thereafter, as long as the Developer adheres to such design criteria and aesthetic standards and requirements, as set forth in the Master Plan, the Developer shall, subject to the provisions of Section 20.2(c)(iv) below, have the sole and excusive right to (A) undertake any and all advertising or marketing of any kind on the Project and/or the Project Site including, without limitation, advertising and marketing distributed through Signage and any related media (whether printed, transmitted on a video screen or message board, transmitted verbally or otherwise, whether presently available or made available in the future, and (B) grant to Project tenants or other third parties and/or manage and coordinate the use and distribution of such rights by and among such Project tenants or other third parties.   (iii)                               Except as provided in Section 20.2(c)(iv) below, the Developer shall be permitted (with Authority Approval) to negotiate, execute and perform under any agreements relating to advertising, naming rights, sponsorships, pouring rights, and other revenue-producing activities as the Developer may determine.  However, the Developer shall review and coordinate any such activities with the Authority so as to minimize or avoid the potential for Developer Interference and/or Authority Interference.   (iv)                              The Developer acknowledges that the Authority has, prior to the Effective Date, executed certain Existing Sports Complex Agreements which may provide Signage, marketing and advertising rights for or with respect to Sports Complex facilities, events and Sports Complex Tenants.  Subject to Section 6.4 hereof, the Developer’s rights under this Section 20.2 and the Project Operating Agreement shall be subject to the rights, duties and obligations of the Authority and the priority of such Existing Sports Complex Agreements in effect as of the Effective Date over the rights of the Developer.  The provisions of Section 3.7 hereof shall govern the rights of the Parties during the period from the Effective Date to the date that the Project Operating Agreement is executed and effective.  Thereafter, the rights and obligations of the Parties shall be governed by the Project Operating Agreement.   SECTION 20.3.  Intellectual Property.  (a) Developer, the Project Professionals, and the Project Contractors shall not acquire any right or interest to proprietary materials or   95   intellectual property owned or used by the Authority, the Sports Complex Users, or the Authority’s Construction Representative, including but not limited to their respective trademarks and trade names.   (b)                                 Neither the Authority nor the Authority Indemnified Parties shall acquire any right or interest in proprietary materials or intellectual property owned or used by the Developer or the Developer’s Project Professionals or Project Contractors, including but not limited to trademarks and trade names.   ARTICLE 21 ARBITRATION   SECTION 21.1.  Scope.  Notwithstanding anything to the contrary elsewhere in this Agreement, the alternative dispute resolution processes provided for in this Article 21 (“Project Arbitration”) shall be the exclusive means for resolution of disputes arising under, relating to, or touching upon this Agreement and Project Documents that contain this project arbitration provision (“Project Arbitration Provision”), the interpretation thereof, or the performance or breach by any party thereto, including but not limited to original disputes as well as all disputes asserted as cross claims, counterclaims, third party claims, or claims for indemnity or subrogation, in any threatened or ongoing court litigation with third parties, if such disputes involve parties to contracts containing this Project Arbitration Provision (collectively “Arbitration Claims”, individually an “Arbitration Claim”); provided however, that these Project Arbitration processes shall not apply to (a) any dispute that involves an Arbitration Claim exceeding $5,000,000.00, exclusive of interest, fees and costs; (b) any Arbitration Claim arising or relating to any matter asserted as an issue in any Project Litigation; (c) any Arbitration Claim relating to a breach of the use restrictions provided in this Agreement, the Ground Lease or Declaration or (d) any Environmental Claim.  In such event, the Parties shall be free to pursue all available actions at law or in equity in the Superior Court of New Jersey, subject to the restrictions and limitations provided herein.   SECTION 21.2.  Arbitration Procedures.  (a) Demand for Arbitration.  Notice of a demand for arbitration of any Arbitration Claim by one Party shall be filed in writing with the other Party.   (b)                                 Selection of Arbitrator.  The arbitration shall be conducted by a single arbitrator, selected as follows:   Within ten (10) days of receipt of a demand for arbitration, the parties shall exchange a list of five (5) proposed arbitrators, ranked in order of preference, all of whom shall be either a former judge of the New Jersey Superior Court, Appellate Division or a former justice of the New Jersey Supreme Court.  The Parties shall select the highest ranked arbitrator from the names common to the lists of the Parties.  If no common names exist, the parties shall exchange a further list of five (5) ranked proposed arbitrators from the same pool of former judges and justices within ten (10) days until the parties agree upon an arbitrator (the “Arbitrator”).   (c)                                  Rules.  The Arbitrator will conduct the hearing pursuant to the rules and procedures of the American Arbitration Association, then in effect.   96   (d)                                 Discovery.  The Arbitrator shall determine the nature and scope of discovery, if any.  No discovery may be had of privileged materials or information.  The Arbitrator upon proper application shall issue such orders as may be necessary and permissible under law to protect confidential, proprietary or sensitive materials or information from public disclosure or other misuse.  Either Party may make application to the Superior Court of the State of New Jersey to have a protective order entered as may be appropriate to confirm such order of the Arbitrator.   (e)                                  Hearing.  The Parties have structured this procedure with the goal of providing for the prompt and efficient resolution of all disputes falling within the purview of this Article.  To that end, either Party can petition the Arbitrator for an expedited hearing if circumstances justify it.  In any event, the hearing of any dispute not expedited will commence as soon as practicable, but in no event later than thirty (30) days after selection of the Arbitrator.  This deadline can be extended only with the consent of the Parties to the dispute, or by decision of the Arbitrator upon a showing of emergency circumstances.  The hearing, once commenced, will proceed from Business Day to Business Day until concluded.   (f)                                    Award.  The Arbitrator shall, within fifteen (15) days from the conclusion of any hearing, issue his or her award.  Any award providing for deferred payment shall include interest at a reasonable rate.  The award is to be rendered in accordance with the Project Agreements and State law.   (g)                                 Scope of Award.  The Arbitrator shall be without authority to award punitive damages, and any such punitive damage award shall be void.  The Arbitrator shall also be without authority to issue an award against any individual party in excess of $5,000,000, exclusive of interest, arbitration fees, costs and attorneys’ fees, attributable to any Arbitration Claim by or against the Project Architect or Project Contractor, and any such award shall be void.  If an award is made against any party in excess of $200,000, exclusive of interest, arbitration fees, costs and attorneys’ fees, it must be supported by written findings of fact, conclusions of law and a statement as to how damages were calculated.   (h)                                 Jurisdiction.  The Arbitrator shall not be bound for jurisdictional purposes by the amount asserted in either Party’s Arbitration Claim, but shall conduct a preliminary hearing into the question of jurisdiction upon application of either Party at the earliest convenient time, but not later than the commencement of the arbitration hearing.   (i)                                     Entry of Judgment.  Either Party can make application to the New Jersey Superior Court for confirmation of an award, and for entry of judgment on it.  Payment of such judgment shall be made following receipt of a final non-appealable decision or order of the Court’s decision or order.   (j)                                     Severance and Joinder.  To reduce the possibility of inconsistent adjudication, (i) an identical Project Arbitration Provision must be included in all Project Documents, (ii) at the request of either Party, the Arbitrator may join and/or sever any party or parties, and consolidate or sever claims arising under other contracts containing this Project   97   Arbitration Provision and (iii) the Arbitrator may, on his own authority, join or sever parties and claims subject to this Project Arbitration process as he deems necessary for a just resolution of the dispute, consistent with the Parties’ goal of the prompt and efficient resolution of disputes.  Nothing herein shall create the right by either Party to assert claims against another party not recognized under the substantive law applicable to the dispute.  The Arbitrator is not authorized to join to the proceeding parties not in privity with the Authority or the Developer.   (k)                                  Appeal.  Either Party may appeal (i) errors of law by the Arbitrator if, but only if, the errors arise in an award in excess of $200,000, (ii) the exercise by the arbitrator of any powers contrary to or inconsistent with this Agreement, or (iii) any grounds provided for in N.J.S.A. 2A:24-8.  Appeals shall be to the Superior Court within fifteen (15) days of entry of the award.  The Superior Court shall have the authority to confirm, vacate, modify or remand an award appealed under this section.   (l)                                     Statutory Arbitration Provisions.  Except as otherwise provided herein, arbitration pursued under this provision shall be governed by N.J.S.A. 2A:24-1 et seq.   SECTION 21.3.  Fees and Costs.  All fees and costs associated with any arbitration pursuant to this Article 21, including without limitation the Arbitrator’s fees, and the prevailing Party’s reasonable attorneys’ fees, expert witness fees and costs, will be paid by the non-prevailing Party.  The determination of prevailing party and non-prevailing Party, and the appropriate allocation of fees and costs, will be included in the award by the Arbitrator.   SECTION 21.4.  Confidentiality.  Any proceeding initiated under this Article 21 shall be deemed confidential to the maximum extent allowed by New Jersey law and no party shall make any disclosure related to the disputed matter or the outcome of any proceeding except to the extent required to seek interim equitable relief or to enforce an agreement reached or award made hereunder.   ARTICLE 22 MISCELLANEOUS   SECTION 22.1.  Cooperation, Assurances, Estoppel Agreements, etc.  The Authority and Developer have executed this Agreement to set forth their basic agreements as to the rights, restrictions, procedures and principles that will govern the development of the Project.  As a result the Authority and the Developer understand that the Parties shall be required to agree to and work-out additional details and agreements in good faith and using their commercially reasonable efforts following the Effective Date. The Developer and the Authority agree to take such actions, including the execution and delivery of such documents and instruments as shall become necessary or appropriate to carry out the terms, provisions and intent of this Agreement.  The Authority further understands and acknowledges that in order for the Developer to obtain Project financing that the lending institutions and/or public or private capital markets may require certain additional agreements with the Authority and Developer (or Component Entity, as the case may be) to enable Developer (or Component Entity, as the case may be) to obtain the necessary financing. Understanding that the basic agreements, rights, restrictions, procedures and principles that govern the development of the Project will not be materially modified as a result,   98   the Authority will cooperate with Developer (or Component Entity, as the case may be) and its Project Lenders to put into effect changes and modifications to this Agreement and enter into additional agreements and understandings reasonably necessary to enable Developer (or Component Entity, as the case may be) to obtain Project financing from designated lenders and carry out the intent of this Agreement. Such agreements and instruments may include, but not be limited to, tri-party agreements, estoppels, non-disturbance agreements, attornment agreements, certifications and the like, all of which shall be reasonably acceptable to the Authority and the Developer (or Component Entity, as the case may be).  Whenever this Agreement provides for the approval or consent of the Authority or the Developer, or any matter is to be to the Authority’s or Developer’s satisfaction or discretion, unless specifically stated to the contrary, such approval, consent or satisfaction shall be made, given or determined in the reasonable discretion of the Party whose approval, consent or satisfaction is required or called for hereunder.  The Party acting for the Authority or Developer or the persons designated by the Authority or Developer to so act on its or their behalf in making all approvals, consents or determinations shall evidence such authority as the Parties shall reasonably request.  Notwithstanding the foregoing, neither of the Parties shall have any obligations to enter into any agreement, including without limitation the modification of any existing agreement, that shall materially diminish the rights, increase the obligations or alter the reasonable commercial expectations of the Parties.   SECTION 22.2.  Invalidity.  If any term or provision of this Agreement shall to any extent or for any reason be held invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but the remainder of this Agreement and each term and permitted by law, subject to such modification hereof as may be necessitated by such invalidity.   SECTION 22.3.  Legal Requirements; Venue.  This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New Jersey, without regard to principles of conflicts of law.  New Jersey shall be the venue for resolution of any disputes that are not resolved pursuant to Article 21 hereof, without regard to principles of federal or State jurisdiction.   SECTION 22.4  Notices.  Any notice, report, demand, request or other instrument or communication authorized, required or desired to be given under this Agreement by Developer or the Authority shall be in writing and shall be deemed given if addressed to the party intended to receive the same, at the address of such party set forth below, when delivered at such address by hand or by overnight delivery service, or three (3) days after the same is deposited in the United States mail as first class certified mail, return receipt requested, postage paid, whether or not the same actually shall have been received by such party:   If to Developer:   Meadowlands Mills/Mack-Cali Limited Partnership c/o The Mills Corporation 1300 Wilson Blvd., Suite 400 Arlington, VA 22209   Attn.: Kenneth R. Parent, Chief Operating Officer   99         Mack-Cali Meadowlands Corporation c/o Mack-Cali Realty Corporation 11 Commerce Drive Cranford, NJ 07016 Attn: Mitchell Hersh, President and Chief Executive Officer   and   DeCotiis, FitzPatrick, Cole & Wisler, LLP Glenpointe Centre West 500 Frank W. Burr Blvd. Teaneck, NJ 07666 Attention: M. Robert DeCotiis, Esq. and Eric D. Wisler, Esq.   If to the Authority:   New Jersey Sports and Exposition Authority Meadowlands Sports Complex 50 State Route 120 East Rutherford, NJ 07073 Attn.: President     Windels Marx Lane & Mittendorf, LLP 120 Albany Street Plaza Suite 600 New Brunswick, NJ 08901 Attn.:  Karl Piirimae, Esquire   SECTION 22.5.  Notice Address.  Either Party may change the address to which any such notice, report, demand, request or other instrument or communication to such Party is to be delivered or mailed, by giving written notice of such change to the other Parties, but no such notice of change shall be effective unless and until received by such other Parties.  No such notice, report, demand, request or other instrument or communication given hereunder shall be invalidated or rendered ineffective due to any failure to give, or delay in giving, a copy of such notice, report, demand, request or other instrument or communication to any Party to whom such copy is to be given as provided above.   SECTION 22.6.  Calculation of Time.  In computing any period of time prescribed by or allowed by any provisions of this Agreement, the day of the act, event or default from which the designated period of time begins to run shall not be included, provided however, that when   100   any period of time so stated would end on a Saturday, Sunday or legal holiday, such period shall be deemed to end on the next day following which is not a Saturday, Sunday or legal holiday.  Unless otherwise stated herein, all notices and other periods shall expire as of 5:00 p.m. local time in East Rutherford, New Jersey on the last day of the notice or other period.   SECTION 22.7.  Expenses.  Whether or not the transaction contemplated by this Agreement is consummated, unless otherwise provided by the terms of this Agreement, each Party shall pay its own expenses incident to the preparation and performance of this Agreement, including, without limitation, attorneys’ fees.   SECTION 22.8.  Waivers; Extensions.  No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof or of any other agreement or provision herein contained.  No extension of time for the performance of any obligation or act shall be deemed an extension of time for the performance of any other obligation or act.   SECTION 22.9.  Counterparts; Captions; Context.  This Agreement may be executed in counterparts, each of which shall be deemed an original.  This Agreement shall not be binding or effective until duly executed by the Authority and Developer.  The captions are for convenience of reference only and shall not affect the construction to be given to any of the provisions hereof.  Where the context shall indicate or require: (i) all references to singular nouns or pronouns shall include the plural, and vice versa; (ii) the masculine shall include the feminine, and the neuter, and vice versa; and (iii) all pronouns shall be deemed modified to reflect the correct gender where so required.   SECTION 22.10.  Entire Agreement, Modifications.  This Agreement, the Deposit Letter, and the Access and Indemnity Agreements constitute the entire contract between the Parties hereto with respect to the Project and the subject matter hereof and supersedes any and all prior negotiations, agreements and understandings, written or oral, formal or informal, all of which are deemed to be merged herein.  No provision of this Agreement be supplemented, terminated, modified or waived except by a writing signed by both Parties.  No modification or amendment to this Agreement of any kind whatsoever, shall be made or claimed by the Authority or Developer, and no notice of any extension, change, modification or amendment made or claimed by the Authority or Developer shall have any force or effect whatsoever unless the same shall have been reduced to writing, approved by the board of directors of the Party (to the extent required by the constituent documents of a Party) and fully signed by the Authority and Developer.   SECTION 22.11.  Binding Effect.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto and, to the extent permitted hereby, their respective heirs, legal representatives, successors and assigns.   SECTION 22.12.  No Joint Venture.  Nothing in this Agreement shall be construed to create a joint venture or partnership between the Authority and Developer.   101   SECTION 22.13. Time of the Essence.  The Parties acknowledge and agree that time is of the essence as to all of the dates provided in this Agreement and the Project Schedule.   SECTION 22.14.  Negation of Third-Party Beneficiaries.  The provisions of this Agreement are for the exclusive benefit of the Parties hereto and not for the benefit of any third person, nor shall this Agreement be deemed to have conferred any rights, express or implied, upon any third person.       102   date first written above (“Effective Date”).   NEW JERSEY SPORTS AND EXPOSITION AUTHORITY MEADOWLANDS MILLS/MACK-CALI LIMITED PARTNERSHIP       By: Meadowlands Mills Limited Partnership, By: /s/ George R. Zoffinger     its General Partner   Name: George R. Zoffinger   By: Meadowlands Mills, L.L.C.,   Title : President   its Majority Partner     By: The Mills Limited Partnership,     its Manager     By: The Mills Corporation,     its General Partner         By:        /s/ Laurence C. Siegel       Name: Laurence C. Siegel       Title: Chairman, Chief Executive Officer and President   103   SCHEDULE 1.1   DEFINITIONS   “Access and Indemnity Agreements” means (a) that certain Right of Entry Agreement, dated April 25, 2003 and (b) that certain Right of Entry Agreement dated as of October 24th, 2003 to be effective as of July 28th, 2003, by and between the Authority and Developer.   “Actual Traffic and Infrastructure Costs” shall have the meaning ascribed to such term in Section 3.3(d) hereof.   “Affiliate” means with respect to any Person, any other Person directly or indirectly Controlling or Controlled by, or under direct or indirect common Control with, such Person.   “Agreement” means this Redevelopment Agreement, as the same may be amended or   “ALTA Survey” shall have the meaning ascribed to such term in Section 6.1 hereof.   “Approval”, “Approve” or “Approved” means the written consent, authorization or acknowledgement to be issued or granted by the Authority or the Developer, as and to the extent required under the terms of this Agreement, and, unless expressly noted otherwise, which shall not be unreasonably withheld, conditioned or delayed.   “Approval Notice” shall have the meaning ascribed to such term in Section 6.2(e)(i) hereof.   “Approved Plans” shall have the meaning ascribed to such term in Section 11.5 hereof.   “Arbitration Claim” and “Arbitration Claims” are defined in Section 21.1 hereof.   “Arbitrator” shall have the meaning ascribed to such term in Section 21.2(b) hereof.   “Arena” is defined in the third paragraph of the Preamble hereof.   “Arena Site” means that portion of the Project Site upon which the Arena is situated, comprised of approximately 11 acres of land and as more particularly depicted in Exhibit “A” hereto.   “Authorized Representative” means an agent of the Authority or the Developer that is expressly permitted to perform the acts and enter into the agreements on behalf of the Authority or the Developer, as applicable.   “Authority” means the New Jersey Sports and Exposition Authority and its successors and assigns.   “Authority’s Construction Representative” is defined in Section 11.3 hereof.   1   “Authority’s Environmental Remediation Contribution” means the Authority’s obligation to pay or reimburse the Developer one hundred percent (100%) of the Incremental Cost or such other portion of the Incremental Cost as the Parties may mutually agree.   “Authority’s Environmental Responsibility” means the Release or suspected or threatened Release of any Hazardous Material (i) occurring prior to, existing on or originating from the Project Site or the Sports Complex property, as of the Effective Date and/or (ii) on the Project Site after the Effective Date, except for Remediation within Developer’s Environmental Responsibility.  Notwithstanding the foregoing, with respect to Hazardous Material migrating onto the Project Site from property other than the Sports Complex, the Authority’s Environmental Responsibility shall extend only to required investigation of such material, including monitoring activities, together with preparation of any reports, other required documents or any administrative matter required by applicable Environmental Law.  For purposes of this definition, a threatened Release shall include, but not be limited to, drums, underground storage tanks and other containers on the Sports Complex that at one time contained, contain or are suspected to contain a Hazardous Material from which an actual Release has not occurred.   “Authority Event of Default” shall have the meaning ascribed to such term in Section 18.2 hereof.   “Authority Indemnified Claim” shall have the meaning ascribed to such term in Section 17.7(a) hereof.   “Authority Indemnified Parties” means Authority and its officers, board members, agents, employees, contractors and consultants.   “Authority Interference” shall mean an actual, direct interference by (or on behalf of) the Authority (or any Sports Complex User) having a material and adverse impact on any of the following: (i) the Developer’s contractual obligations under any agreements executed by the Developer (or Component Entity) for or with respect to the Project (or any Component thereof) and/or the performance by the Developer of its obligations hereunder or under any of the Project Documents (or any third-party agreements contemplated by this Agreement, including but not limited to, under Article 21), (ii) the construction, use, management or operation of the Project and/or the Project Site, (iii) the timely delivery of supplies, inventory, food stuffs or any other item required for the construction, use, management or operation of the Project and/or the Project Site, or (iv) the right or ability of the Developer (or Component Entity)  to carry out or effectuate the transactions contemplated hereunder or under this Agreement or any of the Project Documents; provided however, that any such determination shall be made taking into consideration the construction activities required to be undertaken in order to carry out the Developer’s obligations with respect to the construction of the Project (including without limitation, the presence and operation of construction equipment, lay down areas and delivery of construction materials).   “Authority Profit Participation” shall have the meaning ascribed to such term in Section 5.4 hereof.   2   “Authority Traffic and Infrastructure Payment Amount” shall have the meaning ascribed to such term in Section 8.2(b)(xi) hereof.   “Bankruptcy Code” means 11 U.S.C. § 101 et seq., as the same may be amended and   “Baseball Stadium” shall have the meaning ascribed to such term in Section 3.2(a)(ii) hereof.   “Borough” means the Borough of East Rutherford, a municipal corporation of the State of New Jersey.   “Building Permit(s)” means the permit(s) issued by the New Jersey Department of Community Affairs with respect to the Project or any Component (or Phase) thereof, which Building Permits shall be based upon the Plans and Specifications prepared by the Developer in support of an application for such Building Permit.   “Business Day” means Monday through Friday, excluding weekends and federal holidays, from the hours of 9:00 am to 5:00 pm, Eastern Standard Time.   “Caution Notice” shall have the meaning ascribed to such term in Section 18.2(ii) hereof.   “CEA” is defined in Section 15.3(d) hereof.   “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq.   “Certificate of Completion” shall have the meaning ascribed to such term in Section 9.5(a) hereof.   “Claim” means any pending or threatened claim, demand, notice, allegation, order, directive, suit, action, cause of action, judgment, lien, demand for arbitration, proceeding, or investigation by any Person seeking or asserting Damage against the Authority or the Developer (or any Affiliate or Component Entity or predecessor of same).   “Commence Construction” or “Commencement of Construction” means the undertaking by Developer of any actual physical construction of the Project (or any Component or Phase thereof) and/or the Traffic and Infrastructure Improvements.   “Completion” or “Completed” means, as to any Component (or Phase or Component Part thereof), that the requirements set forth in Section 9.5(a) hereof have been satisfied.   “Completion Dates” means the dates set forth in the Project Schedule by which Certificates of Occupancy for the applicable Component (or Phase thereof) shall have been issued, or such later date as shall have been established as a result of an occurrence of one or more Force Majeure Events.   3   “Complex Agreement Objections” shall have the meaning ascribed to such term in Section 6.4(a) hereof.   “Component” shall have the meaning ascribed to such term in the Recitals and shall refer to an element of the Project, such as the Parking Component, the Entertainment/Retail Component, the Office Component and the Hotel Component, or any Component Part.   “Component Agreement” means each of the separate “redevelopment agreements” executed by the Authority and a Component Entity setting forth the rights, duties and obligations with respect to a particular Project Component or Component Part (as opposed to the Project in its entirety), which Component Agreement shall contain terms and conditions with respect to the Project Component or Component Part that is the subject of such Component Agreement which are substantially similar in all material respects as those contained in this Agreement, taking into consideration the nature and extent of the applicability to such Component or Component Part.   “Component Entity” means any Permitted Transferee or Transferee that has executed a Component Agreement and Component Lease.   “Component Interest” shall have the meaning ascribed to such term in Section 9.4(b) hereof.   “Component Lease” means each of the separate subleases, condominium unit, air rights agreements, separate and direct ground leases or other real estate interest acquired by and entered into by a Component Entity and the Authority (or the Developer and Transferee, as permitted hereunder) setting forth the rights, duties and obligations with respect to the particular Project Component Site or Component Part (as opposed to the Project Site in its entirety) which Component Lease shall contain terms and conditions with respect to the Project Component Site or Component Part that is the subject of such Component Lease, which are substantially similar to those contained in the Ground Lease and Project Documents, taking into consideration the nature and extent of their applicability to such Project Component Site or Component Part.   “Component Parts” shall have the meaning ascribed to such term in Section 9.4(a) hereof.   “Component Uses” means collectively the Entertainment/Retail Uses, Office Component Uses, Hotel Component Uses and Parking Component Uses.   “Conceptual Site Plan” means the documentation attached as Schedule 6.1(b) hereof.   “Construction Contracts” means, collectively, the contracts entered into, from time-to-time, between Developer or a Component Entity and any Project Contractor for performance of services or sale of goods in connection with the design, engineering, installation or construction of the Project.   “Construction Management Agreement” means the agreement to be executed between the Authority and the Developer setting forth the respective rights and obligations of the Parties during the Construction Period so as to minimize the potential for the occurrence of Developer Interference or Authority Interference.   4   “Construction Notice Period” shall have the meaning ascribed to such term in Section 11.7 hereof.   “Construction Period” means as to the Project, or any Component (or Phase thereof) or the Traffic and Infrastructure Improvements (or Phase thereof), that period of time commencing on the Commencement of Construction and ending on the Completion Date such Component (or Phase thereof) or the Traffic and Infrastructure Improvements (or Phase thereof).   “Consumer Price Index” or “CPI” means the Consumer Price Index for Urban Consumers for the New York-Northern New Jersey-Long Island, New York-New Jersey-Connecticut-Pennsylvania Urban Area (CPI-U) published by the United States Department of Labor, Bureau of Labor Statistics, or such other index compiled and published by the Department of Labor in lieu of or in substitution for the CPI.   “Control” (including the correlative meanings of the terms “Controlled by” and “under common Control with”) means with respect to any Person, including without limitation any Affiliate or Component Entity, the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.   “DCA” means the New Jersey Department of Community Affairs, or such other governmental or regulatory agency to which the powers and responsibilities relating to construction code enforcement may be transferred by Executive Order signed by the Governor or by statute.   “Damage” means any loss, cost, assessment, damage, debt, liability, deficiency, fine, penalty, judgment, lien or expense incurred or to be incurred by Authority or Developer, including, without limitation, fees and disbursements of attorneys, consultants, engineers and other professionals, damages from business interference or interruption, costs to avoid business interference or interruption, costs and expenses of any Remediation, environmental damages, and response costs (including, without limitation, response costs under CERCLA or any other Environmental Law).   “Declaration” shall have the meaning ascribed to such term in Section 13.5 hereof.   “Deposit Letter” means that certain letter agreement between the Authority and Mills and Mack-Cali (or the Developer as assignee), dated March 26, 2003, pursuant to which a $500,000 earnest money deposit was deposited with the Authority for use by the Authority in furtherance of the performance of its obligations hereunder, as and to the extent provided in such letter agreement.   “Deposit Letter of Credit” shall have the meaning ascribed to such term in Section 5.2(a)(ii)(A) hereof.   “Designated Representatives” shall mean those individuals designated by Developer and the Authority, respectively, to receive and deliver notices and/or make decisions with regard to certain matters specifically provided in this Agreement.   5   “Developer” means Meadowlands Mills/Mack-Cali Limited Partnership.   “Developer Event of Default” shall have the meaning ascribed to such term in Section 18.1 hereof.   “Developer Fault” shall have the meaning ascribed to such term in Section 5.2 hereof.   “Developer Indemnified Claim” shall have the meaning ascribed to such term in Section 17.6(a) hereof.   “Developer Indemnified Parties” means the Developer and its officers, partners,   “Developer Interference” shall mean an actual, direct material interference by (or on behalf of) the Developer, having a material and adverse impact on any of the following: (i) the Authority’s contractual obligations under this Agreement or the Sports Complex Agreements; (iii) reasonable or customary access to the Sports Complex by Sports Complex Users or patrons of events held at any of the venues located within the Sports Complex, whether on, over or through roads located within the Sports Complex or from off-site roads and accessways; (iv) subject to the terms of this Agreement, provision of services, utilities, labor or amenities to Sports Complex Users, or (v) the delivery of supplies, inventory, foodstuffs or any other item required for the use, operation and conduct of sports and entertainment events at the Sports Complex; provided however, that any purported Interference shall be considered taking into consideration the construction activities required to be undertaken in order to carry out the Developer’s obligations with respect to the construction of the Project (including, without limitation, the presence and operation of construction equipment, lay down areas and delivery of construction materials).   “Developer PILOT Payments” is defined in Section 5.3(a) hereof.   “Developer’s Environmental Responsibility” means the Remediation of the Release of any Hazardous Materials caused by any Remediation of the Project Site and construction of the Project by the Developer or its Affiliates, employees, agents, or contractors.   “Developer’s Response” means, collectively, the following documents, provided by Developer, in their entirety, and does not include oral representations related thereto:   (i)                                     Response to Request for Proposals, dated on or about September 16, 2002 (responds to Authority Request for Proposals of June 29, 2002 and Addendum No. 1 of August 2002);   (ii)                                  Response to First Request for Additional Information (“RAI”), dated on or about October 30, 2002 (responds to RAI of October 14, 2002);   (iii)                               Response to Second RAI, dated December 30, 2002 (responds to Second RAI of November 21, 2002 and Authority’s letters clarifying this request dated on or about November 22, 2002 and on or about November 25, 2002);   6   (iv)                              Response to Third RAI, dated January 29, 2003  (responds to Third RAI of January 22, 2003); and   (v)                                 Response to Fourth RAI, dated February 11, 2003  (responds to Fourth RAI of February 10, 2003).   “Development Approvals” means the permits, licenses, approvals, authorizations, consents, decrees, waivers, and certifications set forth on Schedule 8.2(b) hereto and such other permits, licenses, approvals, authorizations, consents, decrees, waivers, and certifications as may be issued by the Governmental Bodies having competent jurisdiction therefore in order that the Project (or any Component thereof) and/or the Traffic and Infrastructure Improvements may be constructed and/or operated.  Development Approvals shall not include permits that would be obtained at the time of construction of Phase III and/or Phase IV, as set forth in Section 3.2(a) hereof, any Building Permits, or any Certificates of Occupancy or other permits that are obtainable only subsequent to the Commencement of Project Construction.   “Development Approval Documents” shall have the meaning ascribed to such term in Section 7.1 hereof.   “Development Rights Fee” shall have the meaning ascribed to such term in Section 5.2(a) hereof.   “Disapproval Notice” shall have the meaning ascribed to such term in   “Due Diligence Documents” shall have the meaning ascribed to such term in Section 6.4 hereof.   “Effective Date” means the date on which both Parties have executed this Agreement.   “Empire Tract” means that real property described on Exhibit “F” hereof.   “Enabling Legislation” is defined in the second paragraph of the Preamble hereof.   “Entertainment/Retail Component” is defined in the eighth paragraph of the Preamble hereof.   “Entertainment/Retail Component Uses” means any and all uses (a) intended for or related to entertainment, “shoppertainment”™, recreation and sales, including, without limitation, motion pictures, sports, recreation, education, leisure, retail and other vending facilities, food or beverage, dining facilities and services, together with other buildings, structures, pushcarts, kiosks, properties, appurtenances and facilities, whether vending or otherwise related to, incidental to, necessary for or complementary thereto, (b) intended for or related to hosting, operating, managing, or otherwise effectuating athletic contests, sporting events, exhibitions, spectacles, events, broadcasting and/or media facilities, live telecasts, or other expositions, (c) intended for or related to the sale of goods and services related to, incidental to, necessary for or complementary to, the Entertainment/Retail Component, other Project Components and/or the Sports Complex and activities carried out by the Authority and/or   7   the Sports Complex Users on the Meadowlands Complex, and/or (d) as may be further described in the Approved Master Plan.   “Entertainment/Retail Tenant” means a Project Site tenant that, within the Entertainment/Retail Component, carries out Entertainment/Retail Component Uses.   “Entertainment/Retail Uses” means any and all uses intended for or related to entertainment, “shoppertainment”™, recreation and sales, including, without limitation, motion pictures, sports, recreation, education, leisure, retail and other vending facilities, food or beverage, dining facilities and services.   “Environment” means all air, land, and water, including, without limitation, the ambient air, ground (surface and subsurface), water (surface or groundwater), the ocean, natural resources (including flora and fauna), soil, sediments, subsurface strata, or any present or potential drinking water supply.   “Environmental Claim” means any Claim relating to, or in connection with, the Project or Project Site and/or the Traffic and Infrastructure Improvements, including any Claim for Damage, personal injury, real or personal property damage, or natural resource damage, arising directly or indirectly out of any violation or alleged violation of, or noncompliance or alleged noncompliance with, any Environmental Law or Remediation, or any pollution, nuisance, contamination, adverse effect upon the Environment or public health or safety, including the presence, suspected presence, Release, or threatened or suspected Release or any Hazardous Material either on, at, in, under, or from the Project Site or any portion of the Meadowlands Complex that is adjacent to or in the vicinity of the Project Site.   “Environmental Law” means any applicable federal, state, local or other law, statute, ordinance, rule, regulation, Authority Permit, judgment, order, decree, license, or other binding requirement of, or binding agreement with, any Governmental Body, now or hereafter in effect and, in each case, as amended from time to time, relating to or governing the presence, Release, or threatened Release of Hazardous Material, the protection of natural resources, health, safety or the Environment, or the management, manufacture, use, processing, sale, generation, handling, labeling, distribution, transportation, treatment, storage, disposal, Remediation, disclosure, or notice of the presence, Release or threatened Release of Hazardous Material, including, without limitation, (a) the Atomic Energy Act, 42 U.S.C. § 2011 et seq., as amended (“AEA”), (b) the Clean Air Act, 42 U.S.C. § 7401 et seq., as amended (“CAA”), (c) CERCLA, (d) the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 et seq., as amended (“EPCRA”), (e) the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq., as amended (“FIFRA”), (f) the federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., as amended (“FWPCA”), (g) the Hazardous Material Transportation Act, 49 U.S.C. § 1801 et seq., as amended (“HMTA”), (h) the Low-Level Radioactive Waste Policy Act, 42 U.S.C. § 2021b et seq., as amended (“LLRWPA”), (i) the Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10101 et seq., as amended (“NWPA”), (j) the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., as amended (“OSHA”), (k) the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., as amended (“RCRA”), (l) the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., as amended (“SDWA”), (m) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., as   8   amended (“TSCA”), (n) the substantive equivalent of any of the foregoing in any state or foreign jurisdiction, (o) ISRA, (p) the Spill Act, and (q) NJDEP’s Technical Regulations.   “Estimated Wetlands Restoration Amount” shall have the meaning ascribed to such term in Section 3.5(d) hereof.   “Existing Sports Complex Agreements” means the agreements set forth on Exhibit “H” hereto.   “Final Completion” means that (a) a Component (or a Phase thereof) of the Project and/or the Traffic and Infrastructure Improvements shall have been Completed, and (b) the Developer shall have delivered to the Authority a final Completion Certificate certifying that: (i) the Punchlist Items have been completed, (ii) the Developer has settled with the Project Contractors and the subcontractors all claims for payments and amounts due under the Construction Contracts or, in lieu thereof, has provided customary surety or other similar bond for payment with respect to such lien, and (iii) all final “as-built” plans and specifications for the Project shall have been delivered to the Authority for its records.   “Final Completion Date” means that date on which Final Completion of a Component (or Phase thereof) or of the Traffic and Infrastructure Improvements (or Phase thereof) is determined, in the Authority’s reasonable judgment, to have occurred.   “Final Project Sequencing Plan” shall have the meaning ascribed to such term in   “Final Traffic and Infrastructure Improvements” shall have the meaning ascribed to such term in Section 3.3(c) hereof.   “Final Traffic and Infrastructure Sequencing Plan” shall have the meaning ascribed to such term in Section 3.2(c) hereof.   “Force Majeure Event” means the following acts, events or conditions or any combination thereof that has had or may be reasonably expected to have a direct, material, adverse effect on the rights or obligations of the Parties to this Agreement; provided however, that such act, event or condition shall be beyond the reasonable control of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the terms of this Agreement:                                                                                                                                                   (I)                                     AN ACT OF GOD, LIGHTNING, BLIZZARDS, HURRICANE, TORNADO, EARTHQUAKE, UNUSUAL OR EXTREME WEATHER CONDITIONS FOR THE GEOGRAPHIC AREA OF THE MEADOWLANDS COMPLEX, ACTS OF A PUBLIC ENEMY, WAR, BLOCKADE, INSURRECTION, RIOT OR CIVIL DISTURBANCE, SABOTAGE, ACT OF TERRORISM, OR SIMILAR OCCURRENCE;                                                                                                                                                   (II)                                  A LANDSLIDE, FIRE, EXPLOSION, FLOOD OR RELEASE OF NUCLEAR RADIATION NOT CAUSED BY AN ACT OR OMISSION OF THE PARTY RELYING ON THE FORCE MAJEURE EVENT;                                                                                                                                                   (III)                               THE ORDER, JUDGMENT, ACTION AND/OR DETERMINATION OF ANY FEDERAL, STATE OR LOCAL COURT, ADMINISTRATIVE AGENCY OR GOVERNMENTAL BODY WITH JURISDICTION OVER THE   9   PROJECT, THE PROJECT SITE, THE TRAFFIC AND INFRASTRUCTURE IMPROVEMENTS, OR THE PARTIES, EXCEPTING DECISIONS INTERPRETING FEDERAL, STATE AND LOCAL TAX LAWS GENERALLY APPLICABLE TO ALL BUSINESS TAXPAYERS, WHICH ORDER, JUDGMENT, ACTION, AND/OR DETERMINATION MATERIALLY AND ADVERSELY AFFECTS THE RIGHTS OR OBLIGATIONS OF THE PARTIES HEREUNDER AND/OR THE COSTS OF DESIGN, PERMITTING, CONSTRUCTION OR OPERATION OF THE PROJECT, THE TRAFFIC AND INFRASTRUCTURE IMPROVEMENTS OR THE COSTS OF PERFORMANCE BY THE PARTIES OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER; PROVIDED HOWEVER, THAT SUCH ORDER, JUDGMENT, ACTION AND/OR DETERMINATION SHALL NOT BE THE RESULT OF THE ILLEGAL OR UNLAWFUL ACTIONS OF THE PARTY RELYING THEREON AND THAT NEITHER THE CONTESTING OF ANY SUCH ORDER, JUDGMENTS, ACTION AND/OR DETERMINATION, IN GOOD FAITH, NOR THE REASONABLE FAILURE TO SO CONTEST, SHALL CONSTITUTE OR BE CONSTRUED AS A WILLFUL, INTENTIONAL OR NEGLIGENT ACTION OR INACTION BY SUCH PARTY;                                                                                                                                                   (IV)                              THE SUSPENSION, TERMINATION, INTERRUPTION, DENIAL OR FAILURE OF OR DELAY IN RENEWAL OR ISSUANCE OF A DEVELOPMENT APPROVAL; PROVIDED HOWEVER, THAT SUCH SUSPENSION, TERMINATION, INTERRUPTION, DENIAL OR FAILURE OF OR DELAY IN RENEWAL OR ISSUANCE SHALL NOT BE THE RESULT OF THE WILLFUL, INTENTIONAL OR NEGLIGENT ACTION OR INACTION OF THE PARTY RELYING THEREON OR RESPONSIBLE FOR OBTAINING AND THAT NEITHER THE CONTESTING OF ANY SUCH SUSPENSION, TERMINATION, INTERRUPTION, DENIAL OR FAILURE OF RENEWAL OR ISSUANCE, IN GOOD FAITH, NOR THE REASONABLE FAILURE TO SO CONTEST, SHALL CONSTITUTE OR BE CONSTRUED AS A WILLFUL, INTENTIONAL OR NEGLIGENT ACTION OR INACTION BY SUCH PARTY;                                                                                                                                                   (V)                                 STRIKES, WALKOUTS OR SIMILAR LABOR ACTION AFFECTING PROJECT CONTRACTORS, SUBCONTRACTORS, EQUIPMENT MANUFACTURERS, SUPPLIERS OF MATERIAL AND/OR TRANSPORTERS OF SAME;                                                   (VI)                              THE INSTITUTION AND PENDENCY OF ANY PROJECT LITIGATION; AND                                                                                                                                                   (VII)                           ACTS OR OMISSIONS OF THE OTHER PARTY, EXCEPT IN CONFORMANCE WITH THIS AGREEMENT.   The Parties hereto acknowledge that the acts, events or conditions set forth in subparagraphs (i) through (vii) above are intended to be the only acts, events or conditions that may (upon satisfaction of the conditions specified above) constitute a Force Majeure Event.   “Giants” means the New York Football Giants, Inc., a corporation duly organized under the laws of the State of New York.   “Giants Lease” shall have the meaning ascribed to such term in Section 3.7(d) hereof, including any amendment thereto entered into after the Effective Date.   “Giants Negotiation Period” shall have the meaning ascribed to such term in Section 3.7(d)(i).   “Giants Stadium” means the football stadium located within the Meadowlands Complex.   “GLA” means gross leaseable area.   10   “Governmental Body” or “Governmental Bodies” means any federal, state, county or local agency, department, commission, authority, court, or tribunal and any successor thereto, of competent jurisdiction, exercising executive, legislative, judicial, or administrative functions of or pertaining to government; provided however, the Authority shall not, for purposes of this Agreement only, constitute a Governmental Body.   “Ground Lease” means that certain agreement to be executed between Authority and Developer for the lease of the Project Site, in form and content to be mutually agreed upon by the Parties, but incorporating the terms, covenants and conditions set forth in the Ground Lease Term Sheet attached as Exhibit “B” hereto.  To the extent applicable, “Ground Lease” shall also mean the separate Component Leases executed by the Authority directly with a Component Entity (in lieu of the Developer) with respect to a Component Interest (in lieu of the Project in its entirety).   “Ground Lease Closing” means the payment of the Development Rights Fee, execution and delivery of the Ground Lease and such other actions contemplated to be performed set forth in Section 9.3 hereof.   “Ground Lease Closing Date” means the date on which the Ground Lease shall be executed and delivered by the Parties and the Development Rights Fee is paid to the Authority.  Such date shall be the 150th day following the satisfaction or waiver by the Developer of the Material Conditions, or such earlier date as may be established pursuant to Section 9.1(b) hereof.   “Ground Lease Term Sheet” means the term sheet attached hereto as Exhibit “B”.   “Ground Rent” shall have the meaning ascribed to such term in the Ground Lease.   “Ground Rent Payment Conditions” shall have the meaning ascribed to such term in Section 5.2(d) hereof.   “Hazardous Material” means any material, substance, or waste that, because of its presence, quantity, concentration, or character, (a) is regulated under any Environmental Law, (b) would cause or pose a material threat, hazard, or risk to human health or safety or the Environment, or (c) may result in the imposition of, or form the basis for, a Claim, Damage, Environmental Claim, or Remediation, including, without limitation:  (i) any “hazardous substance” and any “pollutant or contaminant” as those terms are defined in CERCLA, the Spill Act, or RCRA; (ii) any hazardous substance, element, compound, mixture, solution, or substance designated pursuant to Section 102 of CERCLA or otherwise regulated under CERCLA; (iii) any substance designated pursuant to Section 311(b)(2)(A) of FWPCA or otherwise regulated under FWPCA; (iv) any toxic pollutant listed pursuant to Section 307 of FWPCA; (v) any hazardous waste having the characteristics identified under or listed pursuant to Section 3001 of RCRA or otherwise regulated under RCRA; (vi) any substance containing petroleum or otherwise regulated under Section 9001 of RCRA; (vii) any hazardous air pollutant listed pursuant to Section 112 of CAA or otherwise regulated under CAA; (viii) any hazardous chemical substance or mixture designated pursuant to Section 4, 6 or 7 of TSCA; (ix) any radioactive material or waste identified or defined pursuant to Section 2 of LLRWPA or Section 2 of NWPA or otherwise regulated under LLRWPA or NWPA; (x) any “hazardous waste” as that term is   11   defined in HMTA; and (xi) any petroleum product or byproducts, solvent, flammable or explosive material, radioactive material, asbestos, polychlorinated biphenyls (PCBs), dioxins, dibenzofurans; and (xii) heavy metals that require Remediation.   “Historic Fill Material” means non-indigenous material, deposited to raise the topographic elevation of the Project Site, which was contaminated prior to emplacement, and is in no way connected with the operations at the Sports Complex and which includes, without limitation, construction debris, dredge spoils, incinerator residue, demolition debris, fly ash, or non-hazardous solid waste.  Historic Fill Material does not include any material which is substantially chromate chemical production waste or any other chemical production waste or waste from processing of metal or mineral ores, residues, slag or tailings.  In addition, Historic Fill Material does not include a municipal solid waste landfill site.   “Hotel Component” is defined in the eighth paragraph of the Preamble hereof.   “Hotel Component Uses” means any and all facilities, sales and services primarily intended for overnight lodging, dining, conference services and related amenities consistent with a first-class hotel and/or conference center, together with ancillary and complementary supporting retail space, and as may be further and more particularly described in the Master Plan.   “Incremental Costs” means those additional costs and expenses incurred by Developer that would not have been incurred but for required Remediation that is the Authority’s Environmental Responsibility under this Agreement, exclusive of costs and expenses for Remediation of Releases of Hazardous Materials that are part of the Developer’s Environmental Responsibility.   “Infrastructure Improvements” means any improvement or utility necessitated or required by the implementation of the Project, which is located on or off the Project Site including but not limited to sidewalk and roadway construction, electric power transmission lines, sewer transmission conduits or pipes, water lines or pipes, storm sewers, telephone transmission lines, television cable lines and other similar utilities.  Infrastructure Improvements shall not include Traffic and Infrastructure Improvements.   “Initial Threshold” shall have the meaning ascribed to such term in Section 5.4 hereof.   “Interference Notice” shall have the meaning specified in Section 11.10 hereof.   “Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder.   “ISRA” means the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., as amended.   “Job Skills Program” shall have the meaning ascribed to such term in Section 3.6 hereof.   “Land Use Restrictions” means those notices, restrictions, and covenants (including the implementation, operation and maintenance of institutional and engineering controls) affecting the title and use of the Project Site or some portion thereof as prescribed by any Governmental   12   Body to protect the public and the Environment from unsafe exposures to Hazardous Materials or to effectuate mitigation of adverse impacts on the Environment and which may be memorialized in recorded documents, including without limitation conservation easements, deed notices and, for groundwater, CEAs, under any Environmental Law.   “Legal Requirements” means all laws, statutes, codes, ordinances, orders, regulations and requirements of any Governmental Body, now or hereafter in effect, and, in each case, as amended from time to time, including, without limitation, the Enabling Legislation.   “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of any such asset, whether or not filed, recorded or otherwise perfected under applicable law.   “Limiting Factors” shall have the meaning ascribed to such term in   “Local Office” is defined in Section 11.12 hereof.   “MOA” shall have the meaning ascribed to such term in Section 15.1(a) hereof.   “Mack-Cali” means Mack-Cali Meadowlands Corporation, or its permitted successors or assigns.   “Major Modification” means an amendment or modification of the Approved Master Plan that proposes (a) a material increase in the size of a Component, (b) a complete or partial change from one Component Use to a different Component Use (e.g. Office Component to Hotel Component), (c) a material increase in the square footage (or GLA, to the extent applicable) devoted to any Component Use or a material reallocation of square footage (or GLA, to the extent applicable) devoted to a use within a Component (e.g., a replacement of entertainment space with retail space), (d) a material modification of the exterior appearance of the Project, and/or (e) such other material modification to the Project or a Component (or Phase thereof) which, if effectuated, would cause the Project or such Component (or Phase thereof) to be materially and adversely inconsistent with the Approved Master Plan.   “Master Plan” shall have the meaning ascribed to such term in Section 6.2 hereof.   “Material Adverse Effect” means a (A) material adverse effect on (i) the performance, operations, business, property, assets, liabilities or financial condition of the Authority, the Developer or the Project; (ii) the ability of Developer to achieve Final Completion on or prior to any scheduled Completion Date or to meet any interim date provided in the final Project Sequencing Plan, the Project Schedule, or any update thereof, (iii) compliance by the Authority or the Developer with any Legal Requirements (including without limitation, Development Approvals), or (iv) the use or operation of the Sports Complex or any portion of the Project, and (B) contravention, modification or limitation of a respective Party’s rights granted or permitted under this Agreement or the Project Agreements.   “Material Conditions” shall have the meaning ascribed to such term in Section 8.2 hereof.   13   “Material Conditions Termination Date” shall have the meaning ascribed to such term in Section 8.2 hereof.   “Meadowlands” and “Meadowlands Sports Complex” shall have the meanings ascribed thereto in the Preamble to this Agreement.   “Meadowlands Complex” means the Sports Complex, as defined in this Schedule 1.1.   “Meadowlands Racetrack” means that certain horseracing track and related improvements located in the Sports Complex.   “Mills” means Meadowlands Mills Limited Partnership, or its permitted successors or assigns.   “MIMAC” means the Meadowlands Interagency Mitigation Advisory Committee, or such successor entity to which the responsibilities of MIMAC are transferred.   “MIMAC Agreement” means the agreement between the Developer and MIMAC setting forth the terms and conditions relating to establishment and operation of the Wetlands Mitigation Bank.   “Minor Modification” means any proposed modification of the Approved Master Plan other than a Major Modification.  Any addition, change or amendment to the Approved Master Plan required to address the requirements of any Development Approval and/or submittal of additional related items that were not included in the Master Plan Approved by the Authority shall (to the extent not constituting a Major Modification) be deemed to constitute a Minor Modification.   “Municipalities” means the Borough (as defined above) and the municipalities immediately adjacent to the Borough, namely Rutherford, Wallington, Carlstadt, Secaucus and Passaic.   “NFA” means a No Further Action Letter as defined in ISRA and the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 et seq., and its implementing regulations, or, if the Remediation is under the supervision of any Governmental Body other than DEP, such comparable determination and document from such other Governmental Body as is available under applicable Environmental Law.   “NJDEP” means the New Jersey Department of Environmental Protection, or any successor regulatory agency to which the powers of NJDEP have been transferred.   “NJDEP Technical Regulations” means the NJDEP’s Technical Requirements for Site Remediation,  N.J.A.C. 7:26E-1, et seq.   “NJMC” means the New Jersey Meadowlands Commission, formerly known as the Hackensack Meadowlands Development Commission, or any other regulatory agency to which the powers of NJMC have been transferred.   14   “New Sports Complex Agreement” means either (a) an agreement executed by the Authority subsequent to the Effective Date with respect to the construction, operation, use or maintenance of the Sports Complex, including any agreement with a current Sports Complex Tenant, or (b) any modification or supplement to an Existing Sports Complex Agreement, executed by the Authority subsequent to the Effective Date, and in either case, Approved by the Developer, in writing.   “OCIP” shall have the meaning ascribed to such term in Section 17.3 hereof.   “Offer Notice” shall have the meaning ascribed to such term in Section 10.2(b) hereof.   “Office Component” is defined in the eighth paragraph of the Preamble hereof.   “Office Component Uses” means the facilities and services primarily intended for a Class “A” office building, together with any necessary or desired amenities, together with ancillary and complementary supporting retail space, all as more particularly described in the Master Plan.   “Office/Hotel Tenant” means a Project Site tenant that, within the Office Component or Hotel Component, as the case may be, operates, manages, promotes, or otherwise effectuates, either directly or indirectly through lessees, licensees, or agents, Hotel Component Uses and Office Component Uses.   “Outside Material Conditions Termination Date” shall have the meaning ascribed to such term in Section 8.3 hereof.   “Overdue Rate” means a rate per annum equal to the prime rate of interest that is published in the Wall Street Journal from time to time (or such other publication that is reasonably designated by the Party entitled to collect interest at the Overdue Rate in the event that the Wall Street Journal ceases publication or, if published, ceases to publish the prime rate of interest) plus four per centum (4%).   “Parking Component” means that portion of the Project consisting of approximately 12,500 parking spaces in multi-story concrete parking structures which Component is intended to be operated for Parking Component Uses.  The Parking Component may be constructed in multiple locations on the Project Site and may be incorporated into a building or other structure that is constructed as part of a different Project Component.  The Parking Component may be designed, permitted and constructed in Phases in accordance with the Final Project Sequencing Plan.   “Parking Component Uses” shall mean the short-term parking of passenger motor vehicles for business invitees to the Project (or any Component thereof) and the attendees of Sports Complex events, as set forth in the Project Operating Agreement.   “Party” or “Parties” means the Developer or the Authority, as appropriate.   “Perimeter Survey” shall have the meaning ascribed to such term in Section 6.1 hereof.   15   “Permitted Exception” shall have the meaning ascribed to such term in Section 4.2(b) hereof.   “Permitted Liens” means the following types of Liens: (i) Liens incurred in connection with the Project Indebtedness; (ii) Liens for taxes, assessments or governmental charges or claims the payment of which is not, at the time due and payable or which is being contested in good faith by appropriate proceedings in accordance with the terms of this Agreement; (iii) statutory Liens of landlords, statutory Liens of banks and rights of set-off, statutory Liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law, in each case incurred in the ordinary course of business for amounts not yet overdue; (iv) leases or subleases granted to third parties in accordance with the terms of this Agreement; (v) Permitted Exceptions, and (vi) easements, rights-of-way, restrictions, encroachments and other minor defects or irregularities in title, in each case that (A) do not result in a material diminution in the value of the Authority’s interest in the Sports Complex or the Project Site or (B) cause Developer Interference or an Authority Interference or materially and adversely interfere with the use and operation of the Project; and (vi) any zoning or similar law or right reserved to any Governmental Body to control or regulate the use of the Project Site.   “Permitted Transferee” shall have the meaning ascribed to such term in Section 14.2(a) hereof.   “Permitted Transfers” is defined in Section 14.2 hereof.   “Person” means any individual, sole proprietorship, corporation, partnership, joint venture, limited liability company or corporation, trust, unincorporated association, institution, public or governmental body, or any other entity including without limitation the Developer, Project Contractors, subcontractors, Designated Representatives or any tenant, operator or concessionaire operating within the Project.   “Phase” is defined in Section 3.2 hereof.   “PILOT Negotiation Period” is defined in Section 5.3(d) hereof.   “PILOT Payments” is defined in Section 5.3(b) hereof.   “Plans and Specifications” shall have the meaning provided in Section 11.2 hereof.   “Post-Approval Item” shall have the meaning ascribed to such term in Section 6.2 hereof.   “Preliminary Project Sequencing Plan” shall have the meaning ascribed to such term in Section 3.2(b) hereof.   “Preliminary Traffic and Infrastructure Sequencing Plan” shall have the meaning   “Progress Report” is defined in Section 12.4 hereof.   “Prohibited Uses” shall have the meaning ascribed to such term in Schedule 13.1 hereto.   16   “Project” shall have the meaning ascribed to such term in the Recitals to this Agreement.   “Project Agreements” shall mean, collectively, the agreements set forth on Schedule 1.2 hereto.   “Project Arbitration” is defined in Section 21.1 hereof.   “Project Arbitration Provision” shall have the meaning ascribed to such term in Section 21.1 hereof.   “Project Architect” means an architect or firm of architects designated by the Developer, from time to time, licensed to practice in the State of New Jersey and approved by the Authority pursuant to the terms hereof, or identified on Schedule 11.2 hereto.   “Project Certificate of Occupancy” means a permanent certificate of occupancy or a temporary certificate of occupancy, in either case, for the Project, Phase, Component or Component Part, as the case may be, issued by the appropriate Governmental Body pursuant to applicable Legal Requirements which permanent or temporary certificate of occupancy shall permit the Project (or any Component thereof, or Phase thereof, as the case may be) to be used for the Component Uses of the Project, shall be in full force and effect, and, in the case of a temporary certificate of occupancy, if such temporary certificate of occupancy shall provide for an expiration date not less than fifteen (15) days after the anticipated date of Completion of any outstanding Punchlist Items as certified by the Project Architect.   “Project Component” or “Component” shall have the meaning ascribed to such term in the Recitals hereof.   “Project Component Site” means a portion of the Project Site upon which a Project Component is constructed.   “Project Contractor” means a general contractor retained by the Developer or any Component Entity, as the case may be, for construction of the Project Improvements or any element thereof.   “Project Documents” means (a) all of the documents submitted by the Developer or any Component Entity, as the case may be, to the Authority or any Governmental Body in connection with the Approval of the Master Plan or the request for any Development Approvals, and (b) all Project Agreements.   “Project Improvements” means all buildings, structures, improvements, site preparation work, Infrastructure Improvements, and amenities as are related to or reasonably necessary for the implementation and Completion of the Project in accordance with the Master Plan.   “Project Indebtedness” means the debt obligations issued by, or the construction or permanent loans made to, the Developer for purposes of providing moneys for payment of a portion of the costs of the Project and/or the obligations of the Developer under this Agreement, the Ground Lease and/or the Project Agreements.   17   “Project Lender(s)” means any financial institution or other financial services entity providing construction or permanent financing to the Developer (or any Component Entity) or for any Component.   “Project Litigation” shall have the meaning described in Section 13.3 hereof.   “Project Operating Agreement” means the agreement to be executed between the Authority and the Developer setting forth the rights and obligations of the Parties in connection with operation of the Project and the Meadowlands Complex after the Construction Period so as to minimize the potential for the occurrence of Developer Interference or Authority Interference.   “Project Professionals” shall have the meaning ascribed to such term in Section 11.2 hereof.   “Project Schedule” shall have the meaning ascribed to such term in Section 12.1 hereof.   “Project Site” means that property within the Meadowlands Complex that is more specifically described on Exhibit “A” hereto.   “Project Team” means the Developer’s staff assigned to the Project and the Project Professionals.   “Promotional Materials” shall have the meaning ascribed to such term in Section 20.1(b) hereof.   “Property Tax Waiver” shall have the meaning ascribed to such tax in Section 5.3(b) hereof.   “Proposed Transferee” shall have the meaning ascribed to such term in Section 14.3 hereof.   “Punchlist Items” means minor or insubstantial details of construction or mechanical adjustment, the non-completion of which, when all such items are taken together, will not interfere in any material respect with the use or occupancy of any Component for the Component Uses or the ability of the Developer or any Tenant to perform work that is necessary or desirable to prepare such portion of the Project for such use and occupancy.   “RCRA” means the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et   “Racetrack Hotel ROFR”  shall have the meaning ascribed to such term in Section 10.2(f) hereof.   “Rail Access Project” shall have the meaning ascribed to such term in Section 3.3(d) hereof.   “Rail Access Project Expenditure” shall have the meaning ascribed to such term in Section 3.3(d) hereof.   18   “Refundable Security Deposit” shall have the meaning ascribed to such term in Section 5.2(a)(ii) hereof   “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing, migration or placement into or contamination of, the Environment.   “Remediate,” “Remediation,” or “Remediated” means any assessment, examination, analysis, test, monitoring, investigation, containment, cleanup, response or remedial action, removal, mitigation, restoration, storage, transportation, treatment, disposal, maintenance, RCRA closure activities or other activity with respect to or in response to any Release of any Hazardous Material, including, without limitation, preparation of any reports and other documents, any disclosure or notice or any other administrative matter required thereunder or arising therefrom, and including any post-closure obligations for such activities, such as monitoring and maintenance of and compliance with engineering and institutional controls.   “Remediation Equipment” means any equipment at the Project Site used in connection with any Remediation at the Project Site.   “Response” is defined in the sixth paragraph of the Preamble hereof.   “Response Period” shall have the meaning ascribed to such term in Section 6.2(f) hereof.   “Resubmitted Master Plan Information” shall have the meaning ascribed to such term in Section 6.2(e)(i) hereof.   “Resubmitted Post-Approval Item Information” shall have the meaning ascribed to such term in Section 6.2(f) hereof.   “REIT” shall have the meaning ascribed to such term in Section 14.2(a) hereof.   “RFP” is defined in the fifth paragraph of the Preamble hereof.   “Right of Entry Agreement” means the agreement between the Authority, Mills and Mack-Cali, dated July 28, 2003 and assigned to the Developer, as the same may be amended or modified from time to time in accordance with its terms.   “Right of First Refusal” shall have the meaning ascribed to such term in Section 10.2(a) hereof.   “ROFR Event” shall have the meaning ascribed to such term in Section 10.2(b) hereof.   “Second Threshold” shall have the meaning ascribed to such term in Section 5.4 hereof.   “Settlement Agreement” means that certain Settlement Agreement by and among the Borough, the East Rutherford Sewerage Authority and the Authority dated January 1, 1990, as amended by an addendum executed in January 1997, relating to Authority’s obligation to make PILOT payments to the Borough under N.J.S.A. 5:10-18(b).   19   “Signage” shall mean all exterior signage (permanent or temporary) and all other exterior advertising media used for advertising or marketing purposes at the Project Site, including, but not limited to, any such exterior signage or exterior advertising media located at the Project, and such signage and advertising media without limitation, “JumboTron”-type screens, advertising signs, banners or displays, time clocks, message boards, billboards, public address announcements, and any advertising media located at the Project through which any other Person holding such rights advertises or markets or may advertise or market products, services, events or any other items.  The term “Signage,” as used herein, shall specifically include any exterior or advertising media not presently utilized or contemplated by the Parties that may be utilized at any time in the future for the advertising or marketing of products, services, events, or other items at the Project.   “Small Business Marketing Program” shall have the meaning ascribed to such term in Section 3.6 hereof.   “Spill Act” means the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq., as amended.   “Sports Complex” or “Meadowlands Complex” means the real property owned by the Authority, as depicted on Exhibit “B” hereto, upon which the Meadowlands Sports Complex, including but not limited to the Continental Airlines Arena, Giants Stadium, the Meadowlands Racetrack are situated.   “Sports Complex Agreements” means  collectively, (a) the Existing Sports Complex Agreements, and (b) any New Sports Complex Agreements.   “Sports Complex Tenants”, subject to the terms of all Project Agreements, means (a) as of the Effective Date, the following professional sports teams: the New Jersey Nets (NBA), the New Jersey Devils (NHL), the New York Giants (NFL), the New York Jets (NFL), the New York/New Jersey MetroStars (MLS), and (b) subsequent to the Effective Date, any professional sports team or other user of the Sports Complex pursuant to a New Sports Complex Agreement.   “Sports Complex Users” means Sports Complex Tenants, and such other sports teams, entertainment, shows, exhibitions, advertisers, users and concessionaires that use or may use the Sports Complex from time to time during the term of this Agreement.   “Stakeholders Advisory Group” shall have the meaning ascribed to such term in Section 12.6 hereof.   “Stakeholders Liaison” shall have the meaning ascribed to such term in Section 12.6 hereof.   “State” means the State of New Jersey.   “substantially complete” or “substantially completed” means that all work related to a Component, Component Part or the Final Traffic and Infrastructure Improvements, as the case may be, has achieved a state of completion so that it is eligible for review by the Authority   20   pursuant to the criteria set forth in Section 9.5(a) hereof for delivery of a Certificate of Completion.   “Successor” shall have the meaning ascribed to such term in Section 14.3(a) hereof.   “Tenant(s)” means the Office/Hotel Tenants and the Entertainment/Retail Tenants.   “Title Insurer” shall have the meaning ascribed to such term in Section 4.2(a) hereof.   “Title Insurance Commitment” shall have the meaning ascribed to such term in Section 4.2(a) hereof.   “Title Objection” shall have the meaning ascribed to such term in Section 4.2(b) hereof.   “Title Objection Date” shall have the meaning ascribed to such term in   “Title Policy” shall have the meaning ascribed to such term in Section 4.3 hereof.   “Traffic and Infrastructure Improvements” means improvements to roadways and sidewalks, installation of traffic signals and signage, relocation of utilities and other improvements, located on and off the Project Site and such other improvements implemented, for the purpose of improving vehicular and pedestrian access to the Project Site.  The Traffic and Infrastructure Improvements may be permitted, designed and constructed in Phases in accordance with the Final Traffic and Infrastructure Sequencing Plan.   “Traffic and Infrastructure Cap Amount” shall have the meaning ascribed to such term in Section 3.3(d) hereof.   “Traffic Study” shall have the meaning ascribed to such term in Section 6.2(c)(i) hereof.   “Transferee” shall have the meaning ascribed to such term in Section 14.3(a) hereof.   “Transferee Application” shall have the meaning ascribed to such term in Section 14.4 hereof.   “Transfer Documents” shall have the meaning ascribed to such term in Section 1.3(b) hereof.   “Transfers” shall have the meaning ascribed to such term in Section 14.1 hereof.   “Unspent Traffic and Infrastructure Amount” shall have the meaning ascribed to such term in Section 3.3(d)(ii) hereof.   “WMB Approvals” shall have the meaning ascribed to such term in Section 3.5(b) hereof.   “Wetlands Mitigation Bank” shall have the meaning ascribed to such term in Section 3.5(b) hereof.   21

Exhibit 32.1 Certification Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of The Sarbanes-Oxley Act of 2002 In connection with the Annual Report of Matthews International Corporation (the “Company”) on Form 10-K for the period ended September 30, 2012 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Joseph C. Bartolacci, President and Chief Executive Officer, certify, to the best of my knowledge, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: (1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/Joseph C. Bartolacci Joseph C. Bartolacci, President and Chief Executive Officer November 27, 2012 A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to Matthews International Corporation and will be retained by Matthews International Corporation and furnished to the Securities and Exchange Commission or its staff upon request.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-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 23, 2011 eMagin Corporation (Exact name of registrant as specified in its charter) Delaware 001-15751 56-1764501 (State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.) 3006 Northup Way, Suite 103, Bellevue, WA 98004 (Address of principal executive offices and Zip Code) Registrant's telephone number, including area code (425) 284-5200 Copies to: Richard A. Friedman, Esq. Sichenzia Ross Friedman Ference Anslow LLP 61 Broadway New York, New York 10006 Phone: (212) 930-9700 Fax: (212) 930-9725 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) 1 Item 8.01 Other Events. In its Form 10-Q for the period ended March 31, 2011, eMagin Corporation(the “Company”)noted that its 2011 annual meeting of shareholders was tentatively scheduled for September 2011.The Annual Meeting has now been scheduled for November 3, 2011.In a Current Report on Form 8-K that was filed with the Securities and Exchange Commission on June 7, 2011, the Company reported that the record date for the Annual Meeting was August 3, 2011.The record date has been changed to the close of business on September 22, 2011. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. eMagin Corporation Date: September 23, 2011 By: /s/Paul Campbell Paul Campbell ChiefFinancial Officer 3

  EXHIBIT 10.1 FIRSTCITY FINANCIAL CORPORATION 1995 Stock Option and Award Plan AWARD AGREEMENT [Date] [Name] [Title] FirstCity Financial Corporation P. O. Box 8216 6400 Imperial Drive Waco, TX 76714-8216 Re: Grant of Stock Option- Non-Employee Director Dear                     :      You have been granted an option to purchase common stock of FirstCity Financial Corporation, a Delaware corporation (the “Company”), pursuant to the Company’s 1995 Stock Option and Award Plan (the “Plan”) for certain individuals, Directors and key employees of the Company and its Subsidiaries. A copy of the Plan is being furnished to you concurrently with the execution of this Award Agreement and shall be deemed a part of this Award Agreement as if fully set forth herein. Unless the context otherwise requires, all terms defined in the Plan shall have the same meaning when used herein.      1. Grant      Subject to the conditions set forth below, the Company hereby grants to you, effective as of ____________, ___ (the “Grant Date”), as a matter of separate inducement and not in lieu of any salary or other compensation for your services, the right and option to purchase (the “Option”), in accordance with the terms and conditions set forth herein and in the Plan, an aggregate of ___ Shares (the “Option Shares”), at a price equal to $        per Share, subject to the adjustments and limitations set forth herein and in the Plan (the “Option Price”). The Option granted hereunder is a Nonqualified Stock Option within the meaning of the Plan. You should consult with your tax advisor concerning the proper reporting of any federal or state tax liability that may arise as a result of the grant or exercise of the Option.          2. Exercise      (a) For purposes of this Award Agreement, the Option Shares shall be deemed “Non-vested Shares” unless and until they have become “Vested Shares.” The Option Shares shall become “Vested Shares” on (a) ___, ___, or (b) in ___equal, consecutive annual installments, commencing on the first anniversary of ___, ___, provided that vesting shall cease upon your ceasing to be a Director of the Company as and to the extent provided in Section 3 hereof.      (b) Subject to the relevant provisions and limitations contained herein and in the Plan, you may exercise the Option to purchase all or any portion of the Vested Shares at any time prior to the termination of the Option pursuant to this Award Agreement. In no event shall you be entitled to exercise the Option for any Non-Vested Shares or for a fraction of any Vested Share.      (c) The unexercised portion of the Option, if any, will automatically, and without notice, terminate and become null and void upon the expiration of ___ (___) years from the Grant Date.      (d) Any exercise by you of the Option shall be in writing addressed to the Secretary of the Company at its principal place of business (a copy of the form of exercise notice to be used will be available upon written request to the Secretary), and shall be accompanied by a certified or bank check payable to the order of the Company in the full amount of the Option Price of the shares so purchased, or in such other manner as described in the Plan and approved by the Committee.      3. Termination of Position      Upon your ceasing to be a Director of the Company, the Option shall terminate and/or be exercisable pursuant to Section 6.7 of the Plan.      4. Transferability      The Option and any rights or interests therein are not assignable or transferable by you except by will or the laws of descent and distribution or as allowed under Section 6.8 of the Plan to members of your Immediate Family (as such term is defined in the Plan), to one or more trusts for the benefit of such Immediate Family members, or to one or more partnerships where such Immediate Family members are the only partners, provided that you do not receive any consideration in any form whatsoever for said transfer. During your lifetime, the Option shall be exercisable only by you, any transferee as allowed in this Section 4 and pursuant to the terms of the Plan, or, in the event that a legal representative has been appointed in connection with your Disability (as such term is defined in the Plan), such legal representative. Any Options so transferred shall continue to be subject to the same terms and conditions in the hands of the transferee as were applicable to said Option immediately prior the transfer thereof. Any reference in herein to your ceasing to serve as a Director of the Company shall continue to refer to your ceasing to serve as a Director of the Company.      5. Withholding Taxes      By acceptance hereof, you hereby (1) agree to reimburse the Company for any federal, state or local taxes required by any government to be withheld or otherwise deducted by such entity in respect of your exercise of all or a portion of the Option; (2) authorize the Company to withhold from any cash compensation paid to you or on your behalf, an amount sufficient to discharge any federal, state and local taxes imposed on the Company, in respect of your exercise of all or a portion of the Option, which otherwise has not been reimbursed by you, in respect of your exercise of all or a portion of the Option; and (3) agree that the Company may, in its discretion, hold the stock certificate to which you are entitled upon exercise of the Option as security for the payment of the aforementioned withholding tax liability, until cash sufficient to pay that liability has been accumulated, and may, in its discretion, effect such withholding by retaining shares issuable upon the exercise of the Option having a Fair Market Value on the date of exercise which is equal to the amount to be withheld.          6. Miscellaneous      (a) This Award Agreement is subject to all the terms, conditions, limitations and restrictions contained in the Plan. In the event of any conflict or inconsistency between the terms hereof and the terms of the Plan, the terms of the Plan shall be controlling.      (b) This Award Agreement is not a contract of employment and the terms of your service and compensation as a Director shall not be affected by, or construed to be affected by, this Award Agreement, except to the extent specifically provide herein. Nothing herein shall impose, or be construed as imposing any obligation (1) on the part of the Company to continue you in your position as a Director of the Company, or (2) on your part to remain in your position as a Director of the Company.          By your signature and the signature of the Company’s representative below, you and the Company agree that this option is granted under and governed by the terms and conditions of the Company’s 1995 Stock Option and Award Plan and this Award Agreement. Please indicate your acceptance of all the terms and conditions of the Option and the Plan by signing and returning a copy of this Award Agreement.             Very truly yours, FIRSTCITY FINANCIAL CORPORATION       By:   ________________________________         Name:           Title:         ACCEPTED:                                                                                Signature of Optionee                                                    Print Name of Optionee Date:                                           

EXHIBIT 99.1 FORM 51-102F3 MATERIAL CHANGE REPORT UNDER SECTION 7.1(1) OF NATIONAL INSTRUMENT 51-102 AND SECTION 5.2 OF MULTILATERAL INSTRUMENT 61-101 Item 1. Name and Address of Company Banro Corporation (the “Company”) 1 First Canadian Place Suite 7070, 100 King Street West Toronto, Ontario, M5X 1E3 Item 2. Date of Material Change February 21, 2013 Item 3. News Release The news release, attached hereto as Schedule “A”, announcing the material change described herein was disseminated through the facilities of Marketwire on February 21, 2013. Item 4. Summary of Material Change The Company has arranged a financing package of up to US$90 million, comprised of: (a) an issue of preferred shares to BlackRock World Mining Trust plc (“Purchaser”) for a value of US$40 million, subject to increase at the Company’s option to US$60 million, and provided certain conditions are satisfied (the “Offering”); and (b) credit facilities for an aggregate of US$30 million with two African commercial banks (the “Bank Financing”). Item 5. Full Description of Material Change 5.1Full Description of Material Change In addition to the information included in this report pursuant to National Instrument 51-102 – Continuous Disclosure Obligations, certain of the following disclosure is required under Multilateral Instrument 61-101 – Protection of Minority Security Holders in Special Transactions (“MI 61-101”). (a) a description of the transaction and its material terms: The Company intends to complete a financing package of up to US$90 million consisting of the Offering and the Bank Financing. The Offering The Company has entered into a subscription agreement with Purchaser pursuant to which Purchaser will purchase US$40 million of gold-linked preferred shares of the Company (the “Initial Preferred Shares”) (subject to increase, at the Company’s option, in the manner described below, to US$60 million, and provided certain conditions are satisfied). The Offering will initially consist of 1.6 million Initial Preferred Shares priced at US$25 each, with each Initial Preferred Share entitling the holder to cumulative preferential cash dividends that will accrue at the end of each fiscal quarter in an amount that reflects an annual dividend yield (based on the Redemption Price of the Initial Preferred Shares) of between 8% and 13% based on the amount of gold production from the Company’s existing properties during the immediately preceding fiscal quarter. The “Redemption Price” of each Initial Preferred Share as of any date will be the dollar-equivalent value (at such date) of approximately 0.015625 ounces of gold (subject to certain adjustments) plus the amount of all accrued and unpaid dividends on such date. The Initial Preferred Shares will be redeemable by the Company at its option following the date that is the later of five years from the closing date of the issuance of the Initial Preferred Shares and the date on which total cumulative gold production from the Company’s existing properties (measured from the said closing date) reaches 800,000 ounces (the “Production Threshold”), by paying a per-share amount equal to (i) the Redemption Price plus (ii) an early redemption premium of 2%. Following the fifth anniversary of the closing date of the issuance of the Initial Preferred Shares, and for so long as the Production Threshold has not been met, a holder of the Initial Preferred Shares will have the option to require the Company to redeem any or all of the holder’s Initial Preferred Shares by paying a per-share amount equal to the Redemption Price. Purchaser will also have the right to require the Company to redeem the Initial Preferred Shares in the event of asset seizure and change of control, at all times subject to the terms of the high yield note indenture issued by the Company. The Company will have the right, following payment of an annual fee of US$200,000 and subject to certain conditions being satisfied, at any time on or before the fifth anniversary of the closing date of the issuance of the Initial Preferred Shares, which right may be exercised only once, to issue to Purchaser up to US$20 million of additional preferred shares (the “Additional Preferred Shares”) at an issue price per Additional Preferred Share equal to the dollar-equivalent value of approximately 0.015625ounces of gold (subject to certain adjustments) on the date the Additional Preferred Shares are issued. If this additional issuance right is exercised, the annual dividend yield on all of the preferred shares will automatically increase by one percentage point (to a range of between 9% and 14%) and the early redemption premium on all of the preferred shares will also automatically increase to 3%. The Company may cancel its obligation to pay for, and its right to exercise, and Purchaser may cancel the Company’s obligation to pay for, and its right to exercise, this additional issuance right once total cumulative gold production from the Company’s existing properties (measured from the closing date of the issuance of the Initial Preferred Shares) reaches 400,000 ounces. The Company has engaged GMP Securities L.P. as its exclusive agent in connection with the Offering. The Offering is subject to the approval of the Toronto Stock Exchange. The Bank Financing The Company has also arranged credit facilities for US$30 million with two commercial banks in the Democratic Republic of the Congo, Rawbank and Ecobank each for US$15 million, and at rates of 9% and 8.5% interest respectively. (b) the purpose and business reasons for the transaction: The net proceeds of the Offering and the Bank Financing are expected to be used for development capital expenditures and general corporate purposes. 1 The objective of growing the Company’s gold production organically and in a non-dilutive manner is achieved with these forms of funding, which also demonstrates the Company’s commitment to preserve the integrity of the capital structure. (c) the anticipated effect of the transaction on the issuer’s business and affairs: See paragraphs (a) and (b) above. (d) a description of: (i) the interest in the transaction of every interested party and of the related parties and associated entities of the interested parties: Purchaser is a fund under management by an investment adviser affiliate of BlackRock, Inc. (BlackRock). BlackRock (on behalf of its investment advisory subsidiaries) acting on behalf of funds and accounts under management, has filed on SEDAR a Required Disclosure For Filing as a U.S. Institutional Investor disclosing beneficial ownership of 14.10% (or 28,472,001) of the Company’s issued and outstanding common shares as of November 30, 2012. BlackRock is a passive eligible institutional investor for the purpose of National Instrument 62-103 and has no involvement in the Company’s management or day-to-day operations. BlackRock does not have any nominees on the Company’s board of directors. (ii) the anticipated effect of the transaction on the percentage of securities of the issuer, or of an affiliated entity of the issuer, beneficially owned or controlled by each person or company referred to in subparagraph (i) for which there would be a material change in that percentage: As a result of participation in the Offering described above, upon closing of the issuance of the Initial Preferred Shares: Purchaser will acquire 1.6 million Initial Preferred Shares of the Company.The Company will have the right to issue to Purchaser up to US$20 million of Additional Preferred Shares, provided certain conditions are satisfied. As a result of the participation in the Offering, BlackRock’s percentage holdings of the issued and outstanding common shares of the Company does not change. (e) unless this information will be included in another disclosure document for the transaction, a discussion of the review and approval process adopted by the board of directors and the special committee, if any, of the issuer for the transaction, including a discussion of any materially contrary view or abstention by a director and any material disagreement between the board and the special committee: The Offering and the Bank Financing were unanimously approved by all of the directors of the Company in accordance with applicable law.There were no contrary views or disagreements in respect of the Offering and Bank Financing. 2 (f) a summary, in accordance with section 6.5 of MI 61-101, of the formal valuation, if any, obtained for the transaction, unless the formal valuation is included in its entirety in the material change report or will be included in its entirety in another disclosure document for the transaction: Not applicable. See paragraph (i) below. (g) disclosure, in accordance with section 6.8 of MI 61-101, of every prior valuation in respect of the issuer that relates to the subject matter of or is otherwise relevant to the transaction: (i) that has been made in the 24 months before the date of the material change report: Not applicable. (ii) the existence of which is known, after reasonable inquiry, to the issuer or to any director or senior officer of the issuer: Not applicable. (h) the general nature and material terms of any agreement entered into by the issuer, or a related party of the issuer, with an interested party or a joint actor with an interested party, in connection with the transaction In respect of its purchase under the Offering, Purchaser has entered into a subscription agreement for the purchase of the Initial Preferred Shares (and the Additional Preferred Shares if the Company exercises its option). The subscription agreement entered into in connection with the Offering contains standard terms and conditions typical of similar private placements. (i) disclosure of the formal valuation and minority approval exemptions, if any, on which the issuer is relying under sections 5.5 and 5.7 of MI 61-101 respectively, and the facts supporting reliance on the exemptions Under subsections 5.5(a) and 5.7(a) of MI 61-101, the Company is exempted from the requirements under MI 61-101 of having to perform a formal valuation and obtain minority shareholder approval in connection with the Offering, as neither the fair market value of the subject matter of, nor the fair market value of the consideration for, the Offering, insofar as it involves interested parties, exceeds 25% of the Company’s market capitalization, calculated in accordance with MI 61-101, at the time the transaction was agreed to. 5.2 Disclosure for Restructuring Transactions Not applicable. Item 6. Reliance of Section 7.1(2) of National Instrument 51-102 This report is not being filed on a confidential basis. 3 Item 7. Omitted Information No information has been omitted. Item 8. Executive Officer The following is the name and business telephone number of an executive officer of the Company who is knowledgeable about the material change and this report. Arnold T. Kondrat Executive Vice President Tel: (416) 366-2221 Item 9. Date of Report February 28, 2013. 4 EXHIBIT "A" 3 A-1 PRESS RELEASE Banro Announces Financing Package for up to US$90 Million Toronto, Canada – February 21, 2013 – Banro Corporation (“Banro” or the “Company”) (NYSE MKT – “BAA”; TSX – “BAA”) is pleased to announce that it has entered into agreements to arrange a financing package of up to US$90 million, comprising: – the issue of preferred shares to the value of US$40 million to BlackRock World Mining Trust plc (“BlackRock”), subject to increase at Banro’s option to US$60 million, and provided certain conditions are satisfied; and – credit facilities for aggregate US$30 million with two African commercial banks. “2013 is a critical year for this Company’s transition to mid-tier, low cost gold producer status, which will result in a step change in the net free-cash flow generated from this business,” commented Simon Village, President and CEO. “The strategic objective of growing Banro’s gold production organically and in a non-dilutive manner is achieved with these forms of funding, which also demonstrates management’s commitment to preserve the integrity of the capital structure. In addition, the competitive cost of capital also highlights the confidence that key stakeholders have in our assets and ability to unlock value from the Twangiza - Namoya gold belt.” Preferred Shares The Company has entered into a subscription agreement with BlackRock pursuant to which BlackRock has agreed to purchase US$40 million of gold-linked preferred shares of Banro (the “Initial Preferred Shares”) (subject to increase, at Banro’s option, in the manner described below, to US$60 million, and provided certain conditions are satisfied) (the “Private Placement”). The issuance of the Initial Preferred Shares is subject to conditions precedent customary for transactions of this nature. The Private Placement will initially consist of 1.6 million preferred shares priced at US$25 each, with each preferred share entitling the holder to cumulative preferential cash dividends that will accrue at the end of each fiscal quarter in an amount that reflects an annual dividend yield (based on the Redemption Price of the preferred shares) of between 8% and 13% based on the amount of gold production from Banro’s existing properties during the immediately preceding fiscal quarter. The “Redemption Price” of each preferred share as of any date will be the dollar-equivalent value (at such date) of approximately 0.015625 ounces of gold (subject to certain adjustments) plus the amount of all accrued and unpaid dividends on such date. The preferred shares will be redeemable by the Company at its option following the date that is the later of five years from the closing date of the issuance of the Initial Preferred Shares and the date on which total cumulative gold production from Banro’s existing properties (measured from the closing date of the Private Placement) reaches 800,000 ounces (the “Production Threshold”), by paying a per-share amount equal to (i) the Redemption Price plus (ii) an early redemption premium of 2%. Following the fifth anniversary of the closing date of the issuance of the preferred shares, and for so long as the Production Threshold has not been met, a holder of the preferred shares will have the option to require the Company to redeem any or all of the holder’s preferred shares by paying a per-share amount equal to the Redemption Price. BlackRock will also have the right to require the Company to redeem the preferred shares in the event of asset seizure and change of control, at all times subject to the terms of the high yield note indenture issued by the Company. Banro will have the right, following payment of an annual fee of US$200,000 and subject to certain conditions being satisfied, at any time on or before the fifth anniversary of the closing date of the issuance of the Initial Preferred Shares, which right may be exercised only once, to issue to BlackRock up to US$20,000,000 of additional preferred shares (the “Additional Preferred Shares”) at an issue price per Additional Preferred Share equal to the dollar-equivalent value of approximately 0.015625 ounces of gold (subject to certain adjustments) on the date the Additional A-2 Preferred Shares are issued. If this additional issuance right is exercised, the annual dividend yield on the preferred shares will automatically increase by one percentage point (to a range of between 9% and 14%) and the early redemption premium on the preferred shares will also automatically increase to 3%. The Company may cancel its obligation to pay for, and its right to exercise, and BlackRock may cancel the Company’s obligation to pay for, and its right to exercise, this additional issuance right once total cumulative gold production from the Company’s existing properties (measured from the closing date of the Private Placement) reaches 400,000 ounces. The net proceeds of the Private Placement are expected to be used for development capital expenditures and general corporate purposes. Banro has engaged GMP Securities L.P. as its exclusive agent in connection with the Private Placement. Assuming the satisfaction of the conditions precedent to closing, the issuance of the Initial Preferred Shares is expected to close on or about 28 February 2013. The Private Placement is subject to the approval of the Toronto Stock Exchange. Credit Facilities Banro has also arranged credit facilities for US$30 million with two commercial banks in the Democratic Republic of the Congo, Rawbank and Ecobank, each for US$15 million, and at rates of 9% and 8.5% interest respectively. This press release does not constitute an offer to sell or a solicitation of an offer to buy nor shall there be any sale of any of the preferred shares in any jurisdiction in which such offer, solicitation or sale would be unlawful. The preferred shares have not been and will not be registered under the United States Securities Act of 1933, as amended (the "U.S. Securities Act"), or the securities laws of any state of the United States and may not be offered or sold within the United States (as defined in Regulation S under the U.S. Securities Act) unless registered under the U.S. Securities Act and applicable state securities laws or pursuant to an exemption from such registration requirements. Banro Corporation is a Canadian gold mining company focused on production from the Twangiza oxide mine and development of three additional major, wholly-owned gold projects, each with mining licenses, along the 210 kilometre long Twangiza-Namoya gold belt in the South Kivu and Maniema provinces of the Democratic Republic of the Congo. Led by a proven management team with extensive gold and African experience, Banro's plans include the construction of its second gold mine at Namoya, at the south end of this gold belt, as well as the development of two other projects, Lugushwa and Kamituga, in the central portion of the belt. The initial focus of the Company is on oxides, which have a low capital intensity to develop but also attract a lower technical and financial risk to the Company and as such maximize the return on capital and limits the dilution to shareholders as the Company develops this prospective gold belt. All business activities are followed in a socially and environmentally responsible manner. For further information, please visit our website at www.banro.com, or contact: Simon Village, President & CEO, Tel: +44 (0) , or Naomi Nemeth, Investor Relations, +1 (416) 366-9189, +1-800-714-7938, Ext. 2802 or [email protected], or Arnold T. Kondrat, Executive Vice-President, +1 (416) 366-2221 Cautionary Note Concerning Forward-Looking Statements This press release contains forward-looking statements. All statements, other than statements of historical fact, that address activities, events or developments that the Company believes, expects or anticipates will or may occur in the future (including, without limitation, statements relating to the proposed financing (including the completion and expected terms of the financing) and the Company's plans and objectives) are forward-looking statements. These forward-looking statements reflect the current expectations or beliefs of the Company based on information currently available to the Company. Forward-looking statements are subject to a number of risks and uncertainties that may cause the actual results of the Company to differ materially from those discussed in the forward-looking statements, and even if such actual results are realized or substantially realized, there can be no assurance that they will have the expected consequences to, or effects on the Company. Factors that could cause actual results or events to differ materially from current expectations include, among other things: failure to complete the proposed financing or failure to complete the financing on the expected terms; the need to satisfy regulatory and legal requirements and other conditions to closing with respect to the financing; uncertainty of estimates of capital and operating costs, production estimates and estimated economic return; the possibility that actual circumstances will differ from the estimates and assumptions used in the economic studies of the Company’s projects; failure to establish estimated mineral resources and mineral reserves (the Company’s mineral resource and mineral reserve figures are estimates and no A-3 assurance can be given that the intended levels of gold will be produced); fluctuations in gold prices and currency exchange rates; inflation; gold recoveries being less than those indicated by the metallurgical testwork carried out to date (there can be no assurance that gold recoveries in small scale laboratory tests will be duplicated in large tests under on-site conditions or during production) or less than those expected following the expansion of the Twangiza plant; uncertainties relating to the availability and costs of financing needed in the future; changes in equity markets; political developments in the DRC; lack of infrastructure; failure to procure or maintain, or delays in procuring or maintaining, permits and approvals; lack of availability at a reasonable cost or at all, of plants, equipment or labour; inability to attract and retain key management and personnel; changes to regulations affecting the Company's activities; the uncertainties involved in interpreting drilling results and other geological data; and the other risks disclosed under the heading "Risk Factors" and elsewhere in the Company's annual information form dated March 26, 2012 filed on SEDAR at www.sedar.com and EDGAR at www.sec.gov. Any forward-looking statement speaks only as of the date on which it is made and, except as may be required by applicable securities laws, the Company disclaims any intent or obligation to update any forward-looking statement, whether as a result of new information, future events or results or otherwise. Although the Company believes that the assumptions inherent in the forward-looking statements are reasonable, forward-looking statements are not guarantees of future performance and accordingly undue reliance should not be put on such statements due to the inherent uncertainty therein. 3 A-4

Name: Council Regulation (EEC) No 1080/77 of 17 May 1977 on the supply of milk and certain milk products at reduced prices to schoolchildren Type: Regulation Date Published: nan No L 131 /8 Official Journal of the European Communities 26 . 5 . 77 COUNCIL REGULATION (EEC) No 1080/77 of 17 May 1977 on the supply of milk and certain milk products at reduced prices to school ­ children THE COUNCIL OF THE EUROPEAN HAS ADOPTED THIS REGULATION : COMMUNITIES, Article 1Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products ('), as last amended by Regulation (EEC) No 559 /76 (2 ), and in particular to the second paragraph of Article 26 thereof, 1 . From the start of the 1977/78 milk year the Community shall contribute for a period of at least five years to financing Member States ' programmes for supplying milk and certain milk products at reduced prices to schoolchildren . 2 . In the case of whole milk, the Community contribution shall be equal to 50 % of its target price . The contribution for other milk products shall be determined in accordance with the procedure referred to in Article 4 and shall not be less than that fixed for whole milk, taking into account the fat content of the product in question . Article 2 The Community contribution shall be subject to the following conditions : Having regard to the proposal from the Commission , Whereas, pursuant to the second paragraph of Article 26 of Regulation (EEC) No 804/68 , it may be decided to make a Community contribution to the financing of programmes for the supply, at reduced prices to schoolchildren , of milk products falling within head ­ ing No 04.01 or 22.02 of the Common Customs Tariff, provided that these programmes fulfil certain conditions ; Whereas, in view of the situation on the markets in milk products and in order to widen sales opportuni ­ ties therefor, the introduction of such programmes should be encouraged and a Community contribution made to their financing ; whereas, to give the measure maximum effectiveness, the beneficiaries , the maximum daily quantity and the types of product distributed should be laid down at Community level ; Whereas the Community outlay should be matched by a substantial contribution in the Member States , whether from the national budget or from the budgets of the local or regional authorities concerned ; Whereas, for the purposes of financing the Commu ­ nity contribution , this measure should be included among those referred to in Article 4 of Regulation (EEC) No 1079/77 of 17 May 1977 on a co-responsibility levy and on measures for expanding the markets in milk and milk products (3 ), 1 . The programme shall be drawn up and imple ­ mented by the Member State or by a regional or local authority . 2 . The beneficiaries of the programme shall be school ­ children to be defined in accordance with the procedure referred to in Article 4 . 3 . The Community contribution referred to in Article 1 (2) shall relate only to whole milk and chocolate ­ flavoured whole milk which have been pasteurized or subjected to a UHT process, and yoghourt falling within heading No 04.01 of the Common Customs Tariff . Other requirements, in particular as regards the quality at the time of distribution , and derogations in connection with the abovemen ­ tioned processing of the milk may be adopted in accordance with the procedure referred to in Article 4. This procedure may also be used to include semi-skimmed milk on the list of products distributed . 4 . The milk supplied to the school shall not amount to more than 0-25 litre per pupil per schoolday . (') OJ No L 148 , 28 . 6 . 1968 , p . 13 . ( 2 ) OJ No L 67, 1 5 . 3 . 1 976 , p . 9 . ( 3 ) See page 6 of this Official Journal . 26. 5 . 77 Official Journal of the European Communities No L 131 /9 Article J For the purposes of financing the Community contri ­ bution , this measure shall be included among those referred to in Article 4 of Regulation (EEC) No 1079/77 . However, this maximum may be increased in accor ­ dance with the procedure referred to in Article 4 where the type of school concerned enables any change in the destination of the products supplied at reduced prices to be avoided . 5 . The financial contribution of the public authorities in the Member States shall be at least 50 % of that of the Community . Subject to conditions to be determined in accor ­ dance with the procedure referred to in Article 4, that contribution may consist of a grant towards providing schools with the equipment necessary to store and distribute the milk . Article 4 Detailed rules for the application of this Regulation shall be adopted in accordance with the procedure laid down in Article 30 of Regulation (EEC) No 804/68 . This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels , 17 May 1977 . For the Council The President J. SILKIN

ITEMID: 001-79619 LANGUAGEISOCODE: ENG RESPONDENT: RUS BRANCH: ADMISSIBILITY DATE: 2007 DOCNAME: PAVEL IVANOV v. RUSSIA IMPORTANCE: 2 CONCLUSION: Inadmissible JUDGES: Christos Rozakis TEXT: The applicant, Mr Pavel Petrovich Ivanov, is a Russian national who was born in 1948 and lives in Velikiy Novgorod. The applicant is the sole founder, owner and editor of the Russkoye Veche newspaper. The newspaper has been published monthly since 2000 at the applicant's expense and has a circulation of 999 copies. In 2003 the applicant was committed for trial on a charge of public incitement to ethnic, racial and religious hatred through the use of the mass-media (an offence under Article 282 § 1 of the Criminal Code). The prosecution's case was that the applicant, through a series of publications in his newspaper, called for the exclusion of Jews from social life, alleged the existence of a causal link between social, economic and political discomfort and the activities of Jews, and portrayed the malignancy of the Jewish ethnic group. The case was tried by the Novgorod Town Court. At the trial the applicant asserted his innocence, maintaining that the “Ziono-Fascist leadership of the Jewry” was the source of all evils in Russia. He believed that, in the absence of reliable information, the Russian public could not learn the causes and reasons of its predicament. The aim of the publications in his newspaper had been to “[educate] the Russians and Jews who [had] suffered from Ziono-Fascist ideology”. On 8 September 2003 the Town Court acquitted the applicant, finding that it was not proven that he was the author of the publication. On 14 October 2003 the Novgorod Regional Court quashed the acquittal and remitted the case. On 9 and 30 December 2003 the Town Court refused the applicant's petitions for a new socio-humanitarian and authorship report into his publications. On 10 February 2004 the applicant asked the Town Court to commission a history-social report that would clarify the following questions: “1. Are the Jews a race? 2. Are the Jews a nation? 3. If the Jews are a nation, from what historical period? 4. Are the Jews in Russia a nation or a Judaic diaspora? 5. May the adjective 'national' or the term 'national dignity' be used in respect of a member of the Judaic diaspora?” On 11 February 2004 the Town Court refused the applicant's request, noting that the answers to those questions had already been obtained by the initial socio-humanitarian report. The Town Court also noted: “In the court's view, it is a generally accepted fact that members of any nation, nationality or ethnic group have national dignity, which is determined by their national self-consciousness, on the basis of which they identify themselves as members of that ethnic group.” On 20 February 2004 the Novgorod Town Court found the applicant guilty of inciting to racial, national and religious hatred and prohibited him from engaging in journalism, publishing and disseminating in the mass-media for a period of three years. The finding of guilt was based, in particular, on socio-humanitarian, socio-psychological and linguistic reports and on oral testimony by the experts. The applicant maintained before the court that he could not have incited to national hatred because the Jews did not exist as a race or nation. The applicant lodged an appeal, reiterating that the Town Court wrongly considered that the “Jewish nation” existed. On 27 April 2004 the Novgorod Regional Court upheld the conviction. It struck down the prohibition on journalistic activity because that particular form of penalty had been introduced into the Criminal Code after the imputed events, and instead sentenced the applicant to a fine of 10,000 Russian roubles (approximately 300 euros).

Name: Commission Regulation (EC) No 368/2005 of 3 March 2005 concerning tenders notified in response to the invitation to tender for the export of barley issued in Regulation (EC) No 1757/2004 Type: Regulation Subject Matter: plant product; trade policy Date Published: nan 4.3.2005 EN Official Journal of the European Union L 58/13 COMMISSION REGULATION (EC) No 368/2005 of 3 March 2005 concerning tenders notified in response to the invitation to tender for the export of barley issued in Regulation (EC) No 1757/2004 THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 13(3) thereof, Whereas: (1) An invitation to tender for the refund for the export of barley to certain third countries was opened pursuant to Commission Regulation (EC) No 1757/2004 (2). (2) Article 7 of Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals (3), and in particular Article 13(3) thereof, (3) On the basis of the criteria laid down in Article 1 of Regulation (EC) No 1501/95, a maximum refund should not be fixed. (4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals, HAS ADOPTED THIS REGULATION: Article 1 No action shall be taken on the tenders notified from 25 February to 3 March 2005 in response to the invitation to tender for the refund for the export of barley issued in Regulation (EC) No 1757/2004. Article 2 This Regulation shall enter into force on 4 March 2005. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 3 March 2005. For the Commission Mariann FISCHER BOEL Member of the Commission (1) OJ L 270, 21.10.2003, p. 78. (2) OJ L 313, 12.10.2004, p. 10. (3) OJ L 147, 30.6.1995, p. 7. Regulation as last modified by Regulation (EC) No 777/2004 (OJ L 123, 27.4.2004, p. 50).

Exhibit 10.7 Vicinity Corporation 370 San Aleso Avenue Sunnyvale, California 94085 April 24, 2001 PERSONAL & CONFIDENTIAL Mr. Tim McMullen 709 Davis Way Dear Tim:     Vicinity Corporation, a Delaware corporation ("Vicinity" or the "Company"), is pleased to offer you employment effective April 24, 2001. Please review this Executive Employment Agreement (the "Agreement"), co-sign and date the Agreement below the Company's signature, and return it to us to confirm that this Agreement reflects our agreement regarding the terms, mutual promises and covenants applicable to your employment by Vicinity. 1. EMPLOYMENT BY THE COMPANY     (a)  Position and Duties.  Subject to terms set forth herein, the Company agrees to employ you in the position of Chief Operating Officer and you hereby accept such employment. You shall serve in an executive capacity and shall perform such duties as are customarily associated with the position of Chief Operating Officer and such other duties as are assigned to you by the Executive Chairman of the Board, the Chief Executive Officer and the Board of Directors (the "Board"). You will report to the Executive Chairman (pending appointment of a Chief Executive Officer) and the Board. During the term of your employment with the Company, you will devote your best efforts and substantially all of your business time and attention (except for vacation periods as set forth herein and reasonable periods of illness or other incapacities permitted by the Company's general employment policies) to the business of the Company, provided that you shall be entitled to up to two days every second week during your employment with the Company to attend to business not related to the Company.     (b)  Employment at Will.  Both the Company and you shall have the right to terminate your employment with the Company at any time, with or without Cause (defined below), and without prior notice. Without limiting the generality of the immediately preceding sentence, you expressly acknowledge that your employment is being commenced at a time that the Company has an immediate short-term need and that your tenure may be relatively short in tenure. If your employment with the Company is terminated by the Company without Cause, you will be eligible to receive the severance benefits to the extent provided in Section 3 of this Agreement. For the purposes of this Agreement, "Cause" means:     (i) your intentional action or failure to act that was performed in bad faith and to the material detriment of the business of the Company;     (ii) your intentional refusal or failure to act in accordance with any lawful and proper direction or order of the Executive Chairman of the Board, Chief Executive Officer or the Board;     (iii) your willful and habitual neglect of your duties of employment;     (iv) your violation of any noncompetition or noninterference agreement that you enter into with the Company; or     (v) your conviction of a felony crime involving moral turpitude; provided, however, that if any of the foregoing events under clauses (i), (ii), (iii) or (iv) above is capable of being cured, the Company shall provide written notice to you describing the nature of such event and you shall thereafter have five business days to cure such event.     (c)  Employment Policies.  The employment relationship between the parties shall also be governed by the general employment policies and practices of the Company, including those relating to protection of confidential information and assignment of inventions, except that when the terms of this Agreement differ from, or are in conflict with, the Company's general employment policies or practices, this Agreement shall control. 2. COMPENSATION     (a)  Base Salary.  You shall receive for services to be rendered hereunder a monthly base salary of $18,750, subject to applicable tax withholding and payable on the regular payroll dates of the Company.     (b)  Bonus.  During the period of your employment with the Company and subject to the Company's achievement of performance objectives, you shall receive a quarterly bonus in an amount equal to 50% of the base salary paid to you during such quarter. These performance objectives shall be agreed upon by you and the Executive Chairman of the Board and reduced to writing at a later date. The determination of whether such performance objectives have been achieved shall be made by the Board in good faith. Any such bonus paid to you by the Company shall be subject to applicable tax withholding.     (c)  Standard Company Benefits.  You shall be entitled to all rights and benefits for which you are eligible under the terms and conditions of the standard Company benefits and compensation practices that may be in effect from time to time and are provided by the Company to its executive employees generally. The Company shall reimburse you for your reasonable travel expenses incurred in connection with your employment by the Company, including appropriate lodging while you are in Northern California.     (d)  Stock Options.  The Company, subject to approval of the Board or its compensation committee, will grant to you non-qualified stock options to purchase an aggregate of 100,000 shares of the Company's common stock, par value $.001 per share (the "Common Stock"), in accordance with the Company's 2000 Equity Participation Plan. The exercise price of the options shall be the fair market value of the Common Stock on the date approved by the Board or the compensation committee, as the case may be, and the options shall vest over twelve months beginning on your first day of employment with the company with the first twenty-five percent (25%) of the shares vesting on the three-month anniversary of your hire date and 8.333% of the shares vesting on each of the next nine monthly anniversary dates. Once vested, these options shall be exercisable for a period of five years from the date of grant, regardless of whether your employment with the Company is earlier terminated. In the event that your employment with the Company is terminated for any reason, all unvested options shall be cancelled. Once vested, these options shall be exercisable for a period of five years from the date of grant, regardless of whether your employment with the Company is earlier terminated. In the event that your employment with the Company is terminated for any reason, all unvested options shall be cancelled. 3. SEVERANCE BENEFITS; RELEASE     (a)  Severance Benefits.  If your employment with the Company is terminated by the Company other than for Cause, (i) you shall receive (a) any monthly base salary that has 2 accrued but is unpaid as of the date of such termination, (b) any bonus to which you are entitled to receive pursuant to Section 2(b) in connection with the expenses incurred in accordance with Company policy and accrued but unreimbursed at the time of termination, and (ii) the Company shall continue to pay your monthly base salary of $18,750 for a period of one month after the date of termination of your employment. In the event that (x) you terminate your employment with the Company or (y) your employment with the Company is terminated by the Company for Cause, or in the event of your death or permanent incapacity, you or your estate shall receive (a) any monthly base salary that has accrued but is unpaid as of the date of such termination and (b) any bonus to which you are entitled to receive pursuant to Section 2(b) in connection with the Company's prior achievement of performance objectives.     (b)  Release.  Upon the termination of your employment by the Company other than for Cause, and prior to the receipt of any benefits under Section 3(a) (except pursuant to clause (i) of the first sentence thereof), you shall execute a Release (the "Release") in the form attached hereto as Exhibit A. Such Release shall specifically relate to all of your rights and claims in existence at the time of such execution. It is understood that you have a certain period to consider whether to execute such Release, and you may revoke such Release within seven (7) business days after execution. In the event you do not execute such Release within the applicable period, or if you revoke such Release within the subsequent seven (7) business day period, none of the aforesaid benefits shall be payable under this Agreement.     (c)  Mitigation.  You shall not be required to mitigate damages or the amount of any payment provided under this Agreement by seeking other employment or otherwise, nor shall the amount of any payment provided for under this Agreement be reduced by any compensation earned by you as a result of employment by another employer or by any retirement benefits received by you after the date of termination of your employment with the Company.     (d)  Exclusive Severence Benefits.  This Section 3 shall constitute the sole benefits payable to you upon termination of employment, notwithstanding any contrary Company policy, oral statement, written statement or other communication. 4. GENERAL PROVISIONS     (a)  Waiver.  If either party should waive any breach of any provisions of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision of this Agreement.     (b)  Complete Agreement.  This Agreement and Exhibit A constitute the entire agreement between you and the Company and are the complete, final, and exclusive embodiment of their agreement with regard to this subject matter. They are entered into without reliance on any promise or representation other than those expressly contained herein or therein, and they cannot be modified or amended except in a writing signed by both parties.     (c)  Counterparts.  This Agreement may be executed in separate counterparts, any one of which need not contain signatures of more than one party, but all of which taken together will constitute one and the same Agreement.     (d)  Successors and Assigns.  This Agreement is intended to bind and inure to the benefit of and be enforceable by you and the Company, and their respective successors, assigns, heirs, executors and administrators, except that you may not assign any of your duties hereunder and you may not assign any of your rights hereunder, without the written consent of the Company, which shall not be withheld unreasonably. 3     (e)  Arbitration.  Unless otherwise prohibited by law or specified below, all disputes, claims and causes of action, in law or equity, arising from or relating to this Agreement or its enforcement, performance, breach, or interpretation shall be resolved solely and exclusively by final and binding arbitration held in San Francisco County, California through Judicial Arbitration & Mediation Services/Endispute ("JAMS") under the then existing JAMS arbitration rules. However, nothing in this section is intended to prevent either patty from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Each party in any such arbitration shall be responsible for its own attorneys' fees, costs and necessary disbursement; provided, however, that if one party refuses to arbitrate and the other party seeks to comply arbitration by court order, if such other party prevails, it shall be entitled to recover reasonable attorneys' fees, costs and necessary disbursements. Pursuant to California Civil Code Section 1717, each party warrants that it was represented by counsel in the negotiation and execution of this Agreement, including the attorneys' fees provision herein.     (f)  Attorneys' Fees.  If either party hereto brings any action to enforce rights hereunder, each party in any such action shall be responsible for its own attorneys' fees and costs incurred in connection with such action.     (g)  Choice of Law.  All questions concerning the construction, validity and interpretation of this Agreement will be governed by the law of the State of California.     Please indicate your acceptance of the terms of this Agreement by execution below.     Very truly yours,     VICINITY CORPORATION a Delaware corporation     By:   /s/ NORMAN NIE    Norman Nie Accepted and agreed to effective as of April 24, 2001:         EXECUTIVE         /s/ TIM MCMULLEN    Tim McMullen         4 Exhibit A RELEASE (INDIVIDUAL TERMINATION)     Certain capitalized terms used in this Release are defined in the Executive Employment Agreement (the "Agreement") which I have executed and of which this Release is a part.     I hereby confirm my obligations under any proprietary information and inventions or similar agreement of the Company.     I acknowledge that I 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 known by him must have materially affected his settlement with the debtor."     I hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to my release of any claims I may have against the Company.     Except as otherwise set forth in this Release, in consideration of benefits I will receive under the Agreement, I hereby release, acquit and forever discharge the Company, its parents and subsidiaries, and their officers, directors, agents, servants, employees, shareholders, successors, assigns and affiliates, of and from any and all claims, liabilities, demands, causes of action, costs, expenses, attorneys' fees, damages, indemnities and obligations of every kind and nature in law, equity, or otherwise, known and unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for indemnification I may have as a result of any third party action against me based on my employment with the Company), arising out of or in any way related to agreements, events, acts or conduct at any time prior to and including the date I execute this Release, including but not limited to all such claims and demands directly or indirectly arising out of or in any way connected with my employment with the Company or the termination of that employment, claims of intentional and negligent infliction of emotional distress, any and all tort claims for personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other form of compensation, claims pursuant to any federal, state or local law or cause, of action, including but not limited to the federal Civil Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as amended ("ADEA"); the federal Employee Retirement Income Security Act of 1974, as amended, the federal Americans with Disabilities Act of 1990, the California Fair Employment and Housing Act, as amended, tort law, contract law, statutory law, common law, wrongful discharge, discrimination fraud, defamation, emotional distress, and breach of the implied covenant of good faith and fair dealing; provided, however, that nothing in this paragraph shall be construed in any way to release the Company from its obligation to indemnify me pursuant to the Company's indemnification obligation pursuant to agreement or applicable law.     I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under ADEA. I also acknowledge that the consideration given under the Agreement for the waiver and release in the preceding paragraph hereof is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A) my waiver and release do not apply to any rights or claims that may arise on or after the date I execute this Release; (B) I have the right to consult with an attorney prior to executing this Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to voluntarily execute this Release earlier); (D) I have seven (7) days following the execution of this Release by the patties to A–1 revoke the Release; and (E) this Release shall not be effective until the date upon which the revocation period has expired, which shall be the eighth (8th) day after this Release is executed by me. Tim McMullen Date: A–2 QuickLinks Exhibit 10.7 2. COMPENSATION 4. GENERAL PROVISIONS Exhibit A RELEASE (INDIVIDUAL TERMINATION)

EXHIBIT 10.2 GUARANTY THIS GUARANTY is entered into as of May 2, 2014 from OMEGA HOLDINGS COMPANY LLC, a Delaware limited liability company ("Guarantor"), in favor of VERTEX REFINING NV, LLC, a Nevada limited liability company ("Lender"). RECITALS A.Guarantor desires to induce Lender to make loans and extend credit to Omega Refining, LLC, a Delaware limited liability company ("Omega"), Bango Refining NV, LLC, a Delaware limited liability company ("Bango Refining" and together with Omega, individually and collectively, as the context requires, "Borrower"). B.Lender is willing to extend credit to Borrower conditioned upon, among other things, Guarantor's execution of this Guaranty. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the parties hereto agree as follows: ArticleI Definitions Section 1.1The following terms shall have the following meanings unless the context expressly requires otherwise: (a)"BBB Loan Agreement" means the Second Amended and Restated Term Loan Credit Agreement dated as of the date hereof by and among Borrower, Guarantor and BBB Funding. (b)"BBB Funding" means BBB Funding, LLC, a Delaware limited liability company. (c)"Collateral" means (i)any and all property and things of value in or against which a deed of trust lien, mortgage lien, other lien, and/or security interest has been granted or may in the future be granted to secure to Lender repayment and performance ofall or a portion of the Guaranteed Obligations; (ii)any and all property and things of value now held or which may in the future be held by or for the benefit of Lender as security for or for application to all or a portion of the Guaranteed Obligations; and (iii)any and all property and things of value assigned to or which may in the future be assigned to or for the benefit of Lender as security for or for application to all or a portion of the Guaranteed Obligations. (d)"Guaranteed Obligations" means (i) the indebtedness, obligations, liabilities, fees, costs and expenses under that certain Secured Promissory Note dated the date hereof (the "Note") issued by Borrower in the principal amount of $13,858,066.67, payable to the order of Lender; and (ii) the receivable which arises from the sale by Lender and its affiliates of used motor oil to Borrower in the amount of $2,207,034.87. (e)"Guaranty" means this Guaranty, as it may be amended and/or restated from time to time hereafter. (f)"Other Guarantor" means any and all Persons who now or in the future guarantee to Lender all or any portion of the Guaranteed Obligations including. (g)"Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government, or any agency or political subdivision thereof, or any other form of entity. ArticleII Representations and Warranties To induce Lender to accept this Guaranty and to cause Lender to extend credit from time to time to Borrower, Guarantor hereby represents and warrants to Lender the following: Section 2.1Organization; Power.Guarantor is duly organized and validly existing under the laws of its jurisdiction of organization.Guarantor is duly qualified to do business in every jurisdiction in which the nature of its business or the ownership of its properties requires such qualification.Guarantor has the power to own its properties and carry on such its business as currently being conducted. Section 2.2Authorization and Binding Effect.The execution and delivery by Guarantor, of this Guaranty and the other agreements, documents and instruments related hereto to which Guarantor is a party, and the performance by Guarantor of its obligations thereunder:(a)are within its power, (b)have been duly authorized by proper action on the part of the governing body of Guarantor, (c)are not in violation of any law, rule or regulation, the organizational or charter documents of Guarantor, or the terms of any agreement, restriction or undertaking to which Guarantor is a party or by which Guarantor is bound and (d) do not require the approval or consent of the holders of the equity interests of Guarantor, any governmental authority or any other person or entity, other than those obtained and in full force and effect.This Guaranty and the agreements, documents and instruments related hereto to which any Guarantor is a party, when executed and delivered, will constitute the valid and binding obligations of Guarantor enforceable in accordance with their terms, except as limited by bankruptcy, insolvency or similar laws of general application affecting the enforcement of creditors' rights and except to the extent that general principles of equity might affect the specific enforcement of this Guaranty or such agreements, documents or instruments. Section 2.3Solvency.(a) The then fair saleable value of the property of Guarantor is (i) greater than Guarantor's total liabilities and (ii) not less than the amount that will be required to pay the probable liabilities on Guarantor's then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to Guarantor.(b) The capital of Guarantor is not unreasonably small in relation to its business or any contemplated or undertaken transaction.(c)Guarantor does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due.(d)Guarantor is "solvent" within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. Section 2.4Schedule of Payables; Accuracy of Information.All outstanding payables and other Liabilities of Guarantor as of the date hereof are set forth on Schedule 4.4(a) attached to the Note.Schedule 4.4(b) of the Note is a true, correct and complete copy of the cash flow analysis (the "Cash Flow Analysis") of Borrower and Guarantor for the period from April 15, 2014 through 2 August 29, 2014, prepared by CDG Group, LLC ("CDG").The Cash Flow Analysis was prepared in good faith and utilized reasonable assumptions at the time made and due care in the preparation thereof.All information furnished by Guarantor to Lender is true, correct and complete in all material respects as of the date furnished and does not contain any untrue statement of a material fact or omit to state a material fact necessary to make such information not misleading. Section 2.5In Furtherance of Business Purposes.The extension of credit to Borrower by Lender is a direct financial benefit to Guarantor and the execution of this Guaranty is made in furtherance of the business purposes of Guarantor. Section 2.6BBB Covenants.Each provision set forth in Articles III, V and VI of the BBB Loan Agreement is hereby incorporated by reference herein together with the definitions included in each such provision with the same effect as if fully set forth herein, in each case, as in effect on the date hereof (without for the avoidance of doubt giving affect to any subsequent amendment or waiver of or consent to departure from such provisions) mutatis mutandis with all references to "Lender" under the BBB Loan Agreement being deemed to refer to Lender and all references to "Holdings" being deemed to refer to Guarantor.Notwithstanding Section 6.08(b)(i) of the BBB Loan Agreement, no prepayment of the indebtedness outstanding under the BBB Loan Agreement shall be permitted prior to the final payment of all amounts outstanding under this Note, except as contemplated by the subordination agreement related thereto. ArticleIII Covenants and Agreements Section 3.1Guarantee of Payment. (a)Guarantor hereby irrevocably and unconditionally guarantees to Lender the full and timely payment and performance of the Guaranteed Obligations. (b)All payments by Guarantor shall be paid in lawful money of the United States of America. (c)Each and every default in payment of the Guaranteed Obligations shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder by Lender as each cause of action arises. (d)Guarantor shall pay on demand to Lender all costs and expenses (including legal fees) incurred by Lender in the protection, interpretation, and enforcement of any of its rights or in the pursuance of any of its remedies in respect of the Guaranteed Obligations or this Guaranty. Section 3.2Obligations Continuing and Unconditional.The obligations of Guarantor under this Guaranty are continuing, absolute and unconditional and shall remain in full force and effect until the entire principal of and interest and expenses on the Guaranteed Obligations shall have been paid in full and discharged, and such obligations shall not be affected, modified or impaired by any state of facts or the happening from time to time of any event whatsoever, including, without limitation, any of the following, whether or not with notice to or the consent of Guarantor: 3 (a)the invalidity, irregularity, illegality or unenforceability of, or any defect in, any instrument, document, agreement or contract evidencing or comprising the Guaranteed Obligations; (b)any present or future law or order of any government or of any agency thereof purporting to reduce, amend or otherwise affect the Guaranteed Obligations or any other obligation of Borrower or any other obligor or to vary any terms of payment; (c)any claim of immunity or defense (other than full and final payment of the Guaranteed Obligations) on behalf of Borrower or any other obligor; (d)the waiver, compromise, settlement, release or termination of any of the Guaranteed Obligations or the release of any Collateral or any Other Guarantor; (e)the failure to give notice to Guarantor of the occurrence of any event of default or breach of any of the Guaranteed Obligations or the breach of any provisions hereunder; (f)the extension of the time for payment of any principal of or interest or premium on any of the Guaranteed Obligations or of the time for performance of any other obligations, covenants or agreements under or arising out of the Guaranteed Obligations; (g)the modification or amendment (whether material or otherwise) of any obligation, instrument, contract, covenant or agreement set forth in, evidencing, or comprising any part of the Guaranteed Obligations; (h)the taking of, or the omission to take, any of the actions referred to in this Guaranty or in any of the instruments, documents, agreements, and contracts evidencing or comprising the Guaranteed Obligations; (i)any failure, omission or delay on the part of Lender or any other Person to enforce, assert or exercise any right, power or remedy conferred on Lender or such other Person in the Guaranty or the Guaranteed Obligations; (j)the voluntary or involuntary liquidation of, dissolution of, sale or other disposition of all or substantially all the assets of, cessation of business of, marshalling of assets and liabilities of, receivership of, financial decline of, insolvency of, bankruptcy of, assignment for the benefit of creditors of, reorganization of, arrangement of, composition with creditors or readjustment of, or other similar proceedings affecting, Borrower or any of its assets or any allegation or contest of the validity of the Guaranteed Obligations or this Guaranty, or the disaffirmance or attempted disaffirmance of the Guaranteed Obligations or this Guaranty, in any such proceedings; (k)the default or failure of Guarantor fully to perform any of its obligations set forth in this Guaranty; (l)the failure of any other Person to guarantee any or all of the Guaranteed Obligations; 4 (m)the failure of Lender to take or perfect a lien, security interest, or any other interest in any Collateral, or the failure by Lender to give notice to Guarantor of any foreclosure or other sale of the Collateral by Lender; (n)the release by Lender of any Collateral or determination by Lender not to assert a claim against or proceed against Borrower, any Collateral or any Other Guarantor; (o)Lender's compromise or settlement with or without release of any other Person liable for any of the Guaranteed Obligations; (p)Lender's failure to file suit against Borrower (regardless whether Borrower is becoming insolvent, is believed to be about to leave the state, or any other circumstance); (q)Lender's acceleration of any or all of the Guaranteed Obligations; (r)the renewal, extension, or amendment of any of the Guaranteed Obligations; (s)Lender's failure to exercise diligence in the collection of the Guaranteed Obligations; or (t)to the extent permitted by law, any event or action that would, in the absence of this paragraph, result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty. Section 3.3Waivers by Guarantor. (a)Guarantor hereby waives with respect to the Guaranteed Obligations and this Guaranty: diligence; presentment; demand of payment; filing of claims with a court in the event of bankruptcy of Borrower or any other Person liable in respect of the Guaranteed Obligations; any right to require Lender to proceed first against Borrower or any other Person; protest; notice of dishonor or nonpayment of any such liabilities; notice of the release of any Other Guarantor; notice of the release or sale of any Collateral; and any other notice and all demands whatsoever.Guarantor hereby waives notice from Lender and the holders at any time or from time to time of the Guaranteed Obligations, of the issuance of the instruments evidencing the Guaranteed Obligations, and of acceptance of, or notice and proof of reliance on, the benefits of this Guaranty. (b)Guarantor hereby agrees that it shall have no right of subrogation, reimbursement or indemnity whatsoever and no right of recourse to or with respect to any assets or property of Borrower until payment in full of the Guaranteed Obligations. (c)The obligations of Guarantor hereunder shall not be discharged except by full and final payment and discharge of the Guaranteed Obligations. Section 3.4Primary Liability of Guarantor.This Guaranty constitutes a guarantee of payment and performance and not of collection.Accordingly, Lender may enforce this Guaranty against Guarantor without first making demand or instituting collection proceedings upon the Guaranteed Obligations.Guarantor's liability for the Guaranteed Obligations is hereby declared to be primary, and not secondary, and each document presently or hereafter executed by Borrower to evidence or secure an obligation to Lender is incorporated herein by reference and shall be fully 5 enforceable against Guarantor.Guarantor shall not be entitled to satisfy this Guaranty by contributing ratably with any Other Guarantor or otherwise paying less than the entire unpaid indebtedness comprising the Guaranteed Obligations. Section 3.5Subordination.Guarantor agrees that any presently existing or hereafter arising loan or extension of credit made by Guarantor to Borrower and any other presently existing or hereafter arising obligation of Borrower to Guarantor shall be subordinate to the Guaranteed Obligations as to both payment and collection.Accordingly, Guarantor agrees not to accept any payment whatsoever from Borrower or to allow any payment by Borrower on Guarantor's behalf while any Guaranteed Obligations remain outstanding.Guarantor agrees that in the event of a bankruptcy or other insolvency proceeding involving Borrower, Guarantor will timely file a claim for the amount of the subordinated debt, in form reasonably acceptable to Lender.Guarantor agrees to pursue said claim with diligence.The proceeds of such claim shall be delivered to Lender to the extent Guarantor owes any Lender amounts under this Guaranty. Section 3.6Statute of Limitations.Guarantor acknowledges that the statute of limitations applicable to this Guaranty shall begin to run only upon Lender's accrual of a cause of action against Guarantor hereunder caused by Guarantor's refusal to honor a demand for performance hereunder made by Lender in writing; provided, however, if, subsequent to the demand upon Guarantor, Lender reaches an agreement with Borrower on any terms causing Lender to forbear in the enforcement of its demand upon Guarantor, the statute of limitation shall be reinstated for its full duration until Lender subsequently again make demands upon Guarantor. Section 3.7Recovery of Avoided Payments.If any amount applied by Lender to the Guaranteed Obligations is subsequently challenged by a bankruptcy trustee or debtor in-possession or other Person as an avoidable transfer on the grounds that the payment constituted a preferential payment or a fraudulent conveyance under state law or the Bankruptcy Code or any successor statute thereto or on any other grounds, Lender may at its option and in its sole discretion, elect whether to contest such challenge.If Lender contests the avoidance action, all costs of the proceeding, including Lender's attorneys' fees, will become part of the Guaranteed Obligations, and shall be due and payable by Guarantor on demand.If the contested amount is successfully avoided, the avoided amount will become part of the Guaranteed Obligations hereunder and shall be due and payable by Guarantor on demand.If Lender elects not to contest the avoidance action, Lender may tender the amount subject to the avoidance action to the bankruptcy court, trustee or debtor in possession and the amount so advanced shall become part of the Guaranteed Obligations hereunder, and shall be due and payable by Guarantor on demand.Guarantor's obligation to reimburse Lender for amounts due under this section shall survive the purported cancellation hereof. Section 3.8Changes in Financial Condition.Guarantor covenants to give Lender prompt written notice of the creation or discovery of any material contingent liability or the occurrence of any material adverse change in the financial condition of Guarantor. Section 3.9Pledge of Ownership Interest.So long as the Guaranteed Obligations are outstanding, Guarantor hereby covenants not to encumber its ownership interest in Borrower. 6 ArticleIV Setoff Rights In order to further secure the payment of the Guaranteed Obligations, Guarantor hereby grants Lender a right to setoff against all of Guarantor's joint or several presently owned or hereafter acquired monies, securities, deposits, instruments, and other Property presently or hereafter in the possession of Lender.By placing Property in Lender's possession, Guarantor acknowledges that Guarantor voluntarily subjects the Property to Lender's rights hereunder. ArticleV Events Requiring Guarantor to Perform Section 5.1Events.Upon the occurrence of any of the following events, Guarantor shall immediately and without notice pay to Lender an amount equal to all Guaranteed Obligations, and Lender shall be entitled to enforce the provisions hereof, and to exercise any other rights, powers, and remedies provided hereunder.Guarantor agrees that if any of the following events occurs, Guarantor shall pay to Lender an amount equal to all Guaranteed Obligations, regardless whether any of the Guaranteed Obligations themselves have been accelerated, are past due, or are in default: (a)an Event of Default (as such term is defined therein) occurs under the Note, or any other document evidencing the Guaranteed Obligations; or (b)except as set forth in clauses (c) and (d) below, Guarantor fails to perform or observe any agreement, covenant or provision contained in this Guaranty; or (c)subject to any applicable grace period or waiver prior to any due date, Guarantor fails to make any payment due on any of its debts, or any event shall occur or any condition shall exist with respect to any of its debts, the effect of which is to cause or to permit any trustee or any holder of such debt to cause (whether or not such holder or trustee elects to cause) any or all of such debt to become due prior to its stated maturity or its regularly scheduled dates of payment; or (d)any warranty, representation or other statement by or on behalf of Guarantor contained in this Guaranty is false or misleading in any material respect; or (e)a default or event of default shall exist under the BBB Loan Agreement or any other agreement, document or instrument evidencing the BBB Indebtedness (as defined in the Note); or (f)Guarantor becomes insolvent, dissolves, liquidates or fails generally to pay its debts as they become due; or (g)the taking of action by Guarantor to become the subject of proceedings under the United States Bankruptcy Code; or the execution by Guarantor of a petition to become a debtor under the United States Bankruptcy Code; or the entry of an order for relief under the United States Bankruptcy Code against Guarantor; or Guarantor making an assignment for the benefit of creditors; or Guarantor consenting to the appointment of a custodian, receiver, trustee or other officer with similar powers for it, or for any substantial part of its property; or adjudicating of Guarantor as insolvent; or 7 (h)if any governmental authority of competent jurisdiction shall enter an order appointing, without consent of Guarantor, a custodian, receiver, trustee or other officer with similar powers with respect to Guarantor, or with respect to any substantial part of its property, or if an order for relief relating to Guarantor shall be entered in any case or proceeding for liquidation or reorganization or otherwise to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of Guarantor, or if any petition for any such relief shall be filed against Guarantor and such petition shall not be dismissed or stayed within 60days; or (i)the occurrence of any event that would permit Lender to accelerate all or any part of the Guaranteed Obligations, but acceleration thereof is prevented by law, court order, or otherwise; or (j)Guarantor violates any of the covenants set forth in section 5 of the Note and such violation is not cured within 15 days of the occurrence thereof. Section 5.2Remedies; Waiver, Etc. (a)No remedy herein conferred upon or reserved to Lender is intended to be exclusive of any other available remedy or remedies, but each and every remedy shall be cumulative and shall be in addition to every other remedy given under this Guaranty or now or hereafter existing at law or in equity or by statute or by contract. (b)No delay or omission to exercise any right or power accruing upon the occurrence of any of the events specified in section5.1 hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. (c)To entitle Lender to exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any notice. (d)In the event any provision contained in this Guaranty should be breached by any party and thereafter duly waived by the other party so empowered to act, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. (e)No waiver, amendment, release or modification of this Guaranty shall be established by conduct, custom or course of dealing. ArticleVI Miscellaneous Section 6.1Survival.All warranties, representations, and covenants made by Guarantor herein shall be deemed to have been relied upon by Lender and the holder(s) from time to time of the Guaranteed Obligations and shall survive the delivery to Lender of this Guaranty regardless of any investigation made by Lender or the holder(s) from time to time of the Guaranteed Obligations. Section 6.2Successors and Assigns.This Guaranty shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, except that Guarantor shall not assign any rights or delegate any obligation hereunder without the prior written consent of Lender.Any 8 attempted assignment or delegation without the required prior consent shall be void.The provisions of this Guaranty are intended to be for the benefit of Lender and any other holder or holders of the Guaranteed Obligations.Guarantor acknowledges that the Guaranteed Obligations and this Guaranty may be assigned or sold by Lender to one or more third parties. Section 6.3No Partners; No Third Party Beneficiaries.Nothing contained herein or in any related document shall be deemed to render Lender a partner of Borrower or Guarantor for any purpose.This Guaranty and any documents securing the Guaranteed Obligations have been executed for the sole benefit of Lender as an inducement to cause Lender to extend credit to Borrower, and neither Guarantor nor any other third party is authorized to rely upon Lender's rights hereunder or to rely upon an assumption that Lender has or will exercise its rights under any document. Section 6.4Notices.All notices provided for herein shall be in writing and shall comply with the provisions of the Purchase Agreement (as defined in the Note) and be sent in accordance with the provisions thereof. Section 6.5Partial Invalidity.The invalidity or unenforceability of any one or more phrases, sentences, clauses or sections in this Guaranty shall not affect the validity or enforceability of the remaining portions of this Guaranty or any part thereof. Section 6.6Indulgence Not Waiver.Lender's indulgence in the existence of a default hereunder or any other departure from the terms of this Guaranty shall not prejudice Lender's rights to make demand and recover from Guarantor. Section 6.7Amendment and Waiver in Writing.No provision of this Guaranty can be amended or waived, except by a statement in writing signed by the party against which enforcement of the amendment or waiver is sought. Section 6.8Entire Agreement; No Oral Representations Limiting Enforcement.This Guaranty represents the entire agreement between the parties concerning the liability of Guarantor for the Guaranteed Obligations, and any previously made oral statements regarding Guarantor's liability for the Guaranteed Obligations are merged herein.Without limiting the foregoing, Guarantor acknowledges that Lender has made no oral statements to Guarantor that could be construed as a waiver of Lender's right to enforce this Guaranty by all available legal means. Section 6.9Costs of Collection Against Guarantor.Guarantor agrees to pay on demand all reasonable costs of collection, including, without limitation, court costs, actual attorneys' fees and compensation for time spent by Lender's employees, that Lender may incur in enforcing the terms of this Guaranty or that may be incurred in any legal proceeding brought to construe, enforce, or apply this Guaranty. Section 6.10Cumulative Remedies.The remedies provided Lender in this Guaranty are not exclusive of any other remedies that may be available to Lender under any other document or at law or equity. Section 6.11Applicable Law.The validity, construction and enforcement of this Guaranty and all other documents executed with respect to the Guaranteed Obligations shall be determined according to the internal laws of the State of Delaware, applicable to contracts executed, delivered and performed entirely within that state without regard to the principles of conflict laws. 9 Section 6.12Captions Not Controlling.Captions and headings have been included in this Guaranty for the convenience of the parties, and shall not be construed as affecting the content of the respective paragraphs. Section 6.13Guaranty Irrevocable.Guarantor's guarantee of the Guaranteed Obligations is irrevocable, except that Guarantor may terminate its continuing obligation to guarantee new indebtedness of Borrower by providing written notice to Lender of such termination and obtaining written confirmation thereof by Lender.No attempted or purported termination by Guarantor shall be effective unless receipt of the notice of termination is acknowledged by Lender thereof in writing.Termination shall apply only to principal portions of the Guaranteed Obligations arising after Lender has confirmed in writing receipt of such notice of termination and shall apply only to such Guaranteed Obligations with respect to which Lender was not obligated to advance credit to Borrower prior to confirmation in writing of receipt of such notice of termination.The notice of termination shall not relieve Guarantor of any of the Guaranteed Obligations:(i)incurred by Borrower before delivery (and confirmation of receipt thereof) of the notice of termination; (ii)arising from and out of Lender's commitments and agreements to extend credit to Borrower made before delivery (and confirmation of receipt thereof) of the notice of termination; and (iii)consisting of accrued interest, actual attorney fees, premiums, and other costs, charges, and monies owing under or pursuant to any of the instruments, documents, agreements, or contracts evidencing or comprising any of the Guaranteed Obligations.Termination of this Guaranty may constitute an event of default under the Guaranteed Obligations. Section 6.14No Marshaling of Assets.Lender may proceed against any Collateral and against parties liable therefor in such order as it may elect, and Guarantor shall not be entitled to require Lender to marshal assets.The benefit of any rule of law or equity to the contrary is hereby expressly waived. Section 6.15Bankruptcy, Etc. of Borrower.Without limitation, Guarantor's obligations hereunder shall not be affected by:(a)the filing of a petition in bankruptcy by or against Borrower under 11U.S.C. §101, etseq., or the appointment of a trustee, receiver, custodian, conservator, or other similar appointment over Borrower or any of Borrower's assets, whether under 11U.S.C. §101, etseq. any state's equivalent statutes or other statutory, administrative, or other laws, rules, or regulations; (b)any order, ruling, or action taken (by Lender, Borrower, or others) in any bankruptcy case initiated by or against Borrower or in any receivership, conservatorship, or other similar estate.Lender may in its discretion modify any of the terms of the Guaranteed Obligations with any successor or assignee of Borrower or its Property including a debtor in possession or trustee in bankruptcy, receiver, custodian, conservator, or similar Person, without affecting Guarantor's obligations hereunder.Any such debtor-in-possession, trustee, receiver, custodian, conservator, or other similarly appointed Person shall be deemed to be authorized to act on behalf of Borrower, and Guarantor authorizes Lender to deal with any such Person as if that Person were Borrower for purposes of this Guaranty. Section 6.16Incorporation by Reference.The provisions of sections 12.06 and 12.07 of the Purchase Agreement are incorporated herein by this reference as if set forth herein in their entirety. Section 6.17Guarantor's Independent Decision.Guarantor delivers this Guaranty based solely on its own independent investigation and determination, and Guarantor has not relied on any statement or representation of Lender or its agents with respect to any matter whatsoever.Guarantor 10 is in a position to and hereby assumes full responsibility for obtaining any additional information concerning the Guaranteed Obligations and Borrower. [remainder of page intentionally left blank; signature page follows] 11 IN WITNESS WHEREOF, the undersigned has executed this Guaranty Agreement as of the date first written on the first page hereof. GUARANTOR: OMEGA HOLDINGS COMPANY LLC By: /s/ Richard A. Silverberg Name:Richard A. Silverberg Title:Manager Signature Page to Guaranty Agreement

THIRD ADDENDUM TO STOCK PURCHASE AGREEMENT   This THIRD ADDENDUM TO STOCK PURCHASE AGREEMENT (this “Addendum”) is dated as of September 14, 2007, by and among Appalachian Oil Company, Inc., a Tennessee corporation (the “Company”), the undersigned stockholders of the Company (collectively referred to herein as “Sellers” and each individually as a “Seller”), and Titan Global Holdings, Inc., a Utah corporation (“Buyer”).   RECITALS:   WHEREAS, the parties have entered into a Stock Purchase Agreement dated July 17, 2007 (the “Stock Purchase Agreement”), pursuant to which Buyer agreed to purchase all of the issued and outstanding capital stock of the Company, for the total consideration of thirty million dollars ($30,000,000.00) (the “Purchase Price”) and on the terms and conditions set forth in the Agreement; and   WHEREAS, there has been a credit against the Purchase Price in the sum of one million dollars ($1,000,000.00) as a result of certain non-refundable earnest money deposits (the “Earnest Money”) already paid to Sellers in connection with the Stock Purchase Agreement; and   WHEREAS, the Company owns certain marketable securities in the amounts and accounts (the “Securities”) as set forth on Schedule A attached hereto, and Buyer wishes to liquidate the Securities and/or distribute some or all of the Securities to Sellers following the Closing of the Stock Purchase Agreement, with the proceeds from such sales and/or distributions to be paid to Sellers by Buyer as consideration for Sellers’ Company stock; and   WHEREAS, the parties desire to amend the Stock Purchase Agreement as set forth below.   NOW, THEREFORE, for and in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and legal sufficiency of which are   ARTICLE I   1.1 At the Closing of the Stock Purchase Agreement, the Buyer shall pay to the Sellers the total sum of Twenty Six Million, One Hundred Eighty One Thousand, Nine Hundred and Five Dollars ($26,181,905.00) via wire transfer, which amount reflects a credit for Sellers’ receipt of the Earnest Money, as well as an additional credit against the Purchase Price in the amount of Two Million, Nine Hundred Eighteen Thousand and Ninety Five Dollars ($2,918,095.00), or the Agreed Value of the Securities (as defined below) less One Hundred Thousand Dollars ($100,000.00).   1.2 The parties agree that the Securities have a current market value of approximately Two Million, Nine Hundred Eighteen Thousand and Ninety Five Dollars ($2,918,095.00) (the “Agreed Value”).   -1-   1.3 Immediately following the Closing of the Stock Purchase Agreement, Buyer and the Company shall take all actions necessary for the sale of the Securities, with the proceeds from such sale to be paid to the Sellers by the Escrow Agent (as defined below), on behalf of the Buyer, as consideration from the Buyer to the Sellers for the purchase of the Company stock, as set forth below. Provided, however, that at the request of the Sellers, the parties agree that some or all of the Securities may be distributed in kind to the Sellers by the Escrow Agent, in the sole discretion of the Sellers, subject only to the agreement of Buyer, the Company and Sellers with respect to the value of such Securities upon distribution to the Sellers.   1.4 To effect the sale (and/or distribution in kind, as applicable) of the Securities contemplated by Section 1.3, at the Closing of the Stock Purchase Agreement, the Securities shall be placed into an escrow account with Aldebaran Financial, Inc. as escrow agent (the “Escrow Agent”), pursuant to an Escrow Agreement to be agreed upon by the parties (the “Escrow Agreement”). The Securities shall be sold by the Escrow Agent (and/or distributed in kind to Sellers) pursuant to the joint instructions of the Buyer, Sellers and the Company, as set forth in the Escrow Agreement, with the sale of the Securities to be completed no later than ten (10) business days following the Closing of the Stock Purchase Agreement. Upon the Escrow Agent’s sale of any of the Securities, the proceeds from such sales shall be distributed to the Sellers via wire transfer, pursuant to Sellers’ instructions, subject to the adjustments contemplated under Section 1.5 below. If the Escrow Agent distributes any of the Securities in kind to the Sellers, then said Securities shall be delivered to the Sellers’ pursuant to Sellers’ written instructions. It is the parties’ intention that the sale (and/or distribution in kind, as applicable) of the Securities shall be executed expeditiously, but in such a manner as to maximize the value of the Securities to the mutual benefit of the parties.   1.5 In the event that the total proceeds of the sale (and/or distribution, as applicable) of the Securities are less than Two Million, Eight Hundred Eighteen Thousand and Ninety Five Dollars ($2,818,095.00), then the Buyer and the Company, jointly and severally, shall promptly, but in no event later than ten (10) days thereafter, pay to the Sellers the shortfall, that is, the amount by which the sale proceeds are less than $2,818,095. On the other hand, in the event that the proceeds of the sale (and/or distribution, as applicable) of the Securities are greater than Two Million, Eight Hundred Eighteen Thousand and Ninety Five Dollars ($2,818,095.00), then the Sellers, jointly and severally, shall promptly, but in no event later than ten (10) days, pay to the Company the excess, that is, the amount by which the sale proceeds are greater than $2,818,095.00.   1.6 It is the intention of the parties that the sale and/or distribution of the Securities shall be completely “tax neutral” to the Sellers, and that any tax losses or gains from the sale and/or distribution of the Securities shall be for the account of the Company. For this reason, the Securities shall continue to be held under the Federal Employer Identification number of the Company, unless they are distributed to Sellers, whereupon the Buyer and Company agree to take all steps reasonably necessary to facilitate the transfer and delivery of the Securities to the Sellers. It is also the intention of the parties that the sale and/or distribution of the Securities shall be deemed part of the aggregate Purchase Price, paid by Buyer to Sellers as consideration for Sellers’ Company stock. If for any reason any taxes should be imposed on Sellers as a result of the sale of the Securities, or as a result of Sellers’ receipt of Securities in kind from Buyer or the Company, then the Company and Buyer jointly and severally agree to indemnify Sellers for any such taxes. The Company and Buyer shall also be responsible for all fees, commissions and other expenses associated with the Escrow Agent’s sale and/or distribution of the Securities.   -2-   ARTICLE II   2.1 Section 2.3 of the Stock Purchase Agreement, as amended, is hereby amended by deleting from clause (a) thereof “September 12, 2007” and inserting in its place “September 14, 2007.”   ARTICLE III   3.1 The Buyer hereby waives the condition precedent set forth in Section 8.3 of the Stock Purchase Agreement to the extent that the consents of Yum Brands, Citgo and Western Union are not obtained prior to the Closing Date. Further, the Buyer hereby waives the conditions precedent set forth in Sections 8.5 and 8.14 of the Stock Purchase Agreement.   ARTICLE IV   4.1 This Addendum shall be construed in accordance with the terms and conditions set forth in the Stock Purchase Agreement, and any capitalized terms set forth in this Addendum that are not defined herein shall have the meaning set forth in the Stock Purchase Agreement. As amended hereby, the Stock Purchase Agreement   4.2 This Addendum shall be governed by, and construed in accordance with, the laws of the State of Tennessee applicable to agreements made and to be performed therein.   4.3 Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Addendum may be brought against any of the parties in the courts of (a) the State of Tennessee, County of Sullivan, or, if it has or can acquire jurisdiction, in the United States District Court for the Eastern District of Tennessee. The parties hereby consent to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waive any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party   4.4 This Addendum and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, personal representatives, assigns, and successors to the business and assets of such parties.   4.5 Each of the parties hereto shall hereafter, at the reasonable request of the other party hereto, execute and deliver such further documents and agreements, and do such further acts and things as may be necessary or expedient to carry out the provisions of this Addendum.   -3-   4.6 This Addendum constitutes a complete statement of all of the arrangements between the parties with respect to the transactions contemplated by this Addendum, and supersedes all prior agreements and understandings with respect to such transactions between them, except for the Stock Purchase Agreement and the amendments thereto. This Addendum shall not be amended or terminated except by an instrument in writing signed by the parties hereto.   4.7 This Addendum may be executed in two or more counterparts, each of which the same instrument.     -4-   IN WITNESS WHEREOF, the parties have executed and delivered this Addendum as of   COMPANY:   APPALACHIAN OIL COMPANY, INC.     By: /s/Jeffrey H. Benedict  Name: Jeffrey H. Benedict  Title: President     SELLERS:     BUYER: THE JAMES R. MACLEAN REVOCABLE TRUST     By: /s/James R. MacLean Name: James R. MacLean Title: Trustee TITAN GLOBAL HOLDINGS, INC.     By: /s/ Bryan M. Chance Name: Bryan M. Chance      /s/ Sara G. MacLean SARA G. MACLEAN by Jeffrey H. Benedict under Power of Attorney dated 7-11-07)           /s/Jeffrey H. Benedict JEFFREY H. BENEDICT     THE LINDA R. MACLEAN IRREVOCABLE TRUST     By: /s/ Sara G. MacLean Name: Sara G. MacLean Title: Trustee (by Jeffrey H. Benedict under Power of Attorney     -5-  

AMERICAN ELECTRIC POWER SERVICE CORPORATION CHANGE IN CONTROL AGREEMENT As Revised Effective November 1, 2009 Whereas, American Electric Power Service Corporation, a New York corporation, including any of its subsidiary companies, divisions, organizations, or affiliated entities (collectively referred to as “AEPSC”) considers it essential to its best interests and the best interests of the shareholders of the American Electric Power Company, Inc., a New York corporation, (hereinafter referred to as “Corporation”) to foster the continued employment of key management personnel; and Whereas, the uncertainty attendant to a Change In Control of the Corporation may result in the departure or distraction of management personnel to the detriment of AEPSC and the shareholders of the Corporation; and Whereas, the Board of the Corporation has determined that steps should be taken to reinforce and encourage the continued attention and dedication of members of AEPSC’s management to their assigned duties in the event of a Change In Control of the Corporation; and Whereas, AEPSC therefore previously established the American Electric Power Service Corporation Change In Control Agreement (the “Agreement”), the current version of which is set forth in a document dated effective January 1, 2008; and Whereas, the Human Resources Committee of the Board of the Corporation has decided to change the payments that should be provided to employees who are named as participating Executives (as defined in Article I(l) of the Agreement) on or after October 1, 2009; Now, Therefore, AEPSC hereby amends the Agreement in its entirety. ARTICLE I DEFINITIONS As used herein the following words and phrases shall have the following respective meanings unless the context clearly indicates otherwise. (a)  “Anniversary Date” means January 1 of each Calendar Year. (b)  “Annual Compensation” means the sum of the Executive’s Annual Salary and the Executive’s Target Annual Incentive. (c)  “Annual Salary” means the Executive’s regular annual base salary immediately prior to the Executive’s termination of employment, including compensation converted to other benefits under a flexible pay arrangement maintained by AEPSC or deferred pursuant to a written plan or agreement with AEPSC, but excluding sign-on bonuses, allowances and compensation paid or payable under any of AEPSC’s long-term or short-term incentive plans or any similar payments, and any salary lump sum amount paid in lieu of or in addition to a base wage or salary increase. (d)  “Board” means the Board of Directors of American Electric Power Company, Inc. (e)  “Calendar Year” means the twelve (12) month period commencing each January 1 and ending each December 31. (f)  “Cause” shall mean (i) the willful and continued failure of the Executive to perform substantially the Executive’s duties with AEPSC (other than any such failure as reasonably and consistently determined by the Board to have resulted from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to the Executive by the Board or an elected officer of AEPSC which specifically identifies the manner in which the Board or the elected officer believes that the Executive has not substantially performed the Executive’s duties, or (ii) the willful conduct or omission by the Executive, which the Board determines to be illegal or gross misconduct that is demonstrably injurious to AEPSC or the Corporation; or a breach of the Executive’s fiduciary duty to AEPSC or the Corporation, as determined by the Board. For purposes of this provision, no act or failure to act, on the part of the Executive, shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of AEPSC or the Corporation.  Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the advice of counsel for AEPSC or the Corporation, shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of AEPSC or the Corporation (g)  “Change In Control” of the Corporation shall be deemed to have occurred if and as of such date that (i) any “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934 (“Exchange Act”)), other than AEPSC, any company owned, directly or indirectly, by the shareholders of the Corporation in substantially the same proportions as their ownership of stock of the Corporation or a trustee or other fiduciary holding securities under an employee benefit plan of the Corporation, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than one third of the then outstanding voting stock of the Corporation; or (ii) the consummation of a merger or consolidation of the Corporation with any other entity, other than a merger or consolidation which would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least two-thirds of the total voting power represented by the voting securities of the Corporation or such surviving entity outstanding immediately after such merger or consolidation; or (iii) the consummation of the complete liquidation of the Corporation or the sale or disposition by the Corporation (in one transaction or a series of transactions) of all or substantially all of the Corporation’s assets. (h)  “CIC Multiple” means a factor of (i) two and ninety-nine one-hundredths (2.99) with respect to the Chief Executive Officer of American Electric Power Service Corporation and such other Executives who are nominated for such factor by the Chief Executive Officer of American Electric Power Service Corporation and approved by the Human Resources Committee of the Board of the Corporation; or (ii) two (2.00) with respect to all other Executives. (i)  “Code” means the Internal Revenue Code of 1986, as amended from time to time. (j)  “Commencement Date” means January 1, 2008, which shall be the beginning date of the term of this Agreement. (k)  “Disability” means the Executive’s total and permanent disability as defined in AEPSC’s long-term disability plan covering the Executive immediately prior to the Change In Control. (l)  “Executive” means an employee of AEPSC or the Corporation who is designated by AEPSC and approved by the Human Resources Committee of the Board of the Corporation as an employee entitled to benefits, if any, under the terms of this Agreement.  References in this agreement to the Executive shall be construed to include a Grandfathered Executive. (m)  “Good Reason” means (1) an adverse change in the Executive’s status, duties or responsibilities as an executive of AEPSC as in effect immediately prior to the Change In Control; (2) failure of AEPSC to pay or provide the Executive in a timely fashion the salary or benefits to which the Executive is entitled under any employment agreement between AEPSC and the Executive in effect on the date of the Change In Control, or under any benefit plans or policies in which the Executive was participating at the time of the Change In Control; (3) the reduction of the Executive’s base salary as in effect on the date of the Change In Control; (4) the taking of any action by AEPSC (including the elimination of a plan without providing substitutes therefor, the reduction of the Executive’s awards thereunder or failure to continue the Executive’s participation therein) that would substantially diminish the aggregate projected value of the Executive’s awards or benefits under AEPSC’s benefit plans or policies in which the Executive was participating at the time of the Change In Control; provided, however, that the diminishment of such awards or benefits that apply to other groups of employees of AEPSC in addition to Executives covered by this or a similar agreement shall be disregarded; (5) a failure by AEPSC or the Corporation to obtain from any successor the assent to this Agreement contemplated by Article IV hereof; or (6) the relocation, without the Executive’s prior approval, of the office at which the Executive is to perform services on behalf of AEPSC to a location more than fifty (50) miles from its location immediately prior to the Change In Control. Any circumstance described in this Article I(m) shall constitute Good Reason even if such circumstance would not constitute a breach by AEPSC of the terms of an employment agreement between AEPSC and the Executive in effect on the date of the Change In Control.  However, such circumstance shall not constitute Good Reason unless (i) within ninety (90) days of the initial existence of such circumstance, the Executive shall have given AEPSC written notice of such circumstance, and (ii) AEPSC shall have failed to remedy such circumstance within thirty (30) days after its receipt of such notice.  Such written notice to be provided by the Executive to AEPSC shall specify (A) the effective date for the Executive’s proposed termination of employment (provided that such effective date may not precede the expiration of the period for AEPSC’s opportunity to remedy), (B) reasonable detail of the facts and circumstances claimed to provide the basis for termination, and (C) the Executive’s belief that such facts and circumstance would constitute Good Reason for purposes of this Agreement.  The Executive’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any circumstances constituting Good Reason hereunder. (n)  “Grandfathered Executive” means an individual who became an Executive [as defined in Article I(l)] prior to October 1, 2009, and who continuously has remained such an Executive until becoming entitled to benefits set forth in this Agreement. (o)  “Qualifying Termination” shall mean following a Change In Control and during the term of this Agreement the Executive’s employment is terminated for any reason excluding (i) the Executive’s death, (ii) the Executive’s Disability, (iii) the exhaustion of the Executive’s benefits under the terms of an applicable AEPSC sick pay plan or long-term disability plan (other than by reason of the amendment or termination of such a plan), (iv) the Executive’s Retirement, (v) by AEPSC for Cause or (vi) by the Executive without Good Reason.  In addition, a Qualifying Termination shall be deemed to have occurred if, prior to a Change In Control, the Executive’s employment was terminated during the term of this Agreement (A) by AEPSC without Cause, or (B) by the Executive based on events or circumstances that would constitute Good Reason if a Change in Control had occurred, in either case, (x) at the request of a person who has entered into an agreement with AEPSC or the Corporation, the consummation of which would constitute a Change In Control or (y) otherwise in connection with, as a result of or in anticipation of a Change In Control.  The mere act of approving a Change In Control agreement shall not in and of itself be deemed to constitute an event or circumstance in anticipation of a Change In Control for purposes of this Article I(n). (p)  “Retirement” shall mean an Executive’s voluntary termination of employment after attainment of age 55 with five or more years of service with AEPSC without Good Reason. (q)  “Target Annual Incentive” shall mean the award that the Executive would have received under the Senior Officer Annual Incentive Compensation Plan or such other annual incentive compensation plan applicable to such Executive for the year in which the Executive’s termination occurs, if one hundred percent (100%) of the annual target award has been earned.  Executives not participating in an annual incentive compensation plan that has predefined target levels will be treated as though they were participants in an annual incentive plan with such targets and will be assigned the same annual target percent as their participating peers in a comparable salary grade. ARTICLE II TERM OF AGREEMENT 2.1           The initial term of this Agreement shall be for the period beginning on the Commencement Date and ending on the December 31 immediately following the Commencement Date.  The term of this Agreement shall automatically be extended for an additional Calendar Year on the first Anniversary Date immediately following the initial term of this Agreement without further action by AEPSC, and shall be automatically extended for an additional Calendar Year on each succeeding Anniversary Date, unless AEPSC shall have served notice upon the Executive at least thirty (30) days prior to such Anniversary Date of AEPSC’s intention that this Agreement shall not be extended, provided, however, that if a Change In Control of the Corporation shall occur during the term of this Agreement, this Agreement shall terminate two years after the date the Change In Control is completed. 2.2           If an employee is designated as an Executive after the Commencement Date or after an Anniversary Date, the initial term of this Agreement shall be for the period beginning on the date the employee is designated as an Executive and ending on the December 31 immediately following. 2.3           Notwithstanding Section 2.1, the term of this Agreement shall end upon any termination of the Executive’s employment that is other than a Qualifying Termination in connection with a Change In Control of the Corporation.  For example, this Agreement shall terminate if the Executive’s position is eliminated and the Executive’s employment is terminated, other than in connection with a Change In Control of the Corporation, (i) due to a downsizing, consolidation or restructuring of AEPSC or of any other subsidiary of the Corporation or (ii) due to the sale, disposition or divestiture of all or a portion of AEPSC or of any other subsidiary of the Corporation. ARTICLE III COMPENSATION UPON A QUALIFYING TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL 3.1           Except as otherwise provided in Section 3.3, upon a Qualifying Termination, the Executive shall be under no further obligation to perform services for AEPSC and shall be entitled to receive the following payments and benefits:   (a) As soon as practicable following the Executive’s date of termination, AEPSC shall make a lump sum cash payment to the Executive in an amount equal to the sum of (1) the Executive’s Annual Salary through the date of termination to the extent not theretofore paid, (2) the product of (x) the current plan year’s Target Annual Incentive and (y) a fraction, the numerator of which is the number of days in such calendar year through the date of termination, and the denominator of which is 365, except that annual incentive plans which do not have predetermined annual target awards for participants shall have their pro-rated incentive compensation award for the current plan year paid as soon as practicable, and (3) any accrued vacation pay that otherwise would be available upon the Executive’s termination of employment with AEPSC, in each case to the extent not theretofore paid and in full satisfaction of the rights of the Executive thereto; provided, however, in the case of a Qualifying Termination in the circumstances specified in Article I(o)(B), payment of the amount described in subsection (2) of this Section 3.1(a) shall not be made until immediately after the Change in Control event or circumstance; and   (b) Within sixty (60) days of the Executive’s return of the signed release form, AEPSC shall make a lump sum cash payment to the Executive in an amount equal to the CIC Multiple times the Executive’s Annual Compensation. If the Qualifying Termination is specified in Article I(o) (A) or (B), no such lump sum payment shall be made unless and until the Change in Control related to the Qualifying Termination shall have occurred. 3.2           The Executive shall be entitled to such outplacement services and other non-cash severance or separation benefits as may then be available under the terms of a plan or agreement to groups of employees of AEPSC in addition to Executives who are covered under the terms of this or a similar agreement.  See also section 3.3(b).  To the extent any benefits described in this Article III, Section 3.2 cannot be provided pursuant to the appropriate plan or program maintained by AEPSC, AEPSC shall provide such benefits outside such plan or program at no additional cost to the Executive. 3.3           Notwithstanding the foregoing;   (a) The severance payments and benefits provided under Sections 3.1(b), 3.2 and, if applicable, 3.4 hereof shall be conditioned upon the Executive executing a release at the time the Executive’s employment is terminated, in the form established by the Corporation or by AEPSC, releasing the Corporation, AEPSC and their shareholders, partners, officers, directors, employees and agents from any and all claims and from any and all causes of action of kind or character, including but not limited to all claims or causes of action arising out of Executive’s employment with the Corporation or AEPSC or the termination of such employment.   (b) The severance payments and benefits provided under Sections 3.1, 3.2 and, if applicable, 3.4 hereof shall be subject to, and conditioned upon, the waiver of any other cash severance payment or other benefits provided by AEPSC pursuant to any other severance agreement between AEPSC and the Executive.  No amount shall be payable under this Agreement to, or on behalf of the Executive, if the Executive elects benefits under any other cash severance plan or program, or any other special pay arrangement with respect to the termination of the Executive’s employment.   (c) The Executive agrees that at all times following termination, the Executive will not, without the prior written consent of AEPSC or the Corporation, disclose to any person, firm or corporation any “confidential information,” of AEPSC or the Corporation which is now known to the Executive or which hereafter may become known to the Executive as a result of the Executive’s employment or association with AEPSC or the Corporation, unless such disclosure is required under the terms of a valid and effective subpoena or order issued by a court or governmental body; provided, however, that the foregoing shall not apply to confidential information which becomes publicly disseminated by means other than a breach of this provision.  It is recognized that damages in the event of breach of this Section 3.3(c) by the Executive would be difficult, if not impossible, to ascertain, and it is therefore agreed that AEPSC and the Corporation, in addition to and without limiting any other remedy or right that AEPSC or the Corporation may have, shall have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and the Executive hereby waives any and all defenses the Executive may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief.  The existence of this right shall not preclude AEPSC or the Corporation from pursuing any other rights or remedies at law or in equity which AEPSC or the Corporation may have.   “Confidential information” shall mean any confidential, propriety and or trade secret information, including, but not limited to, concepts, ideas, information and materials relating to AEPSC or the Corporation, client records, client lists, economic and financial analysis, financial data, customer contracts, marketing plans, notes, memoranda, lists, books, correspondence, manuals, reports or research, whether developed by AEPSC or the Corporation or developed by the Executive acting alone or jointly with AEPSC or the Corporation while the Executive was employed by AEPSC. 3.4           Notwithstanding anything to the contrary in this Agreement, but subject to the requirements of Section 3.3, in the event that any payment or distribution by AEPSC to or for the benefit of any Grandfathered Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto) by reason of being “contingent on a change in ownership or control” of the Corporation, within the meaning of Section 280G of the Code (or any successor provision thereto) or any interest or penalties with respect to such excise tax other than any such amount as may become payable by the Grandfathered Executive by reason of Code Section 409A (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the "Excise Tax"), and the aggregate total of such Payments (the “Total Payments”) is determined to be an “excess parachute payment” pursuant to Code Section 280G with the effect that the Grandfathered Executive is liable for the payment of the Excise Tax.   (a) If the Total Payments do not exceed 105% of the amount as would trigger the Grandfathered Executive having any “parachute payment” as described in Code Section 280G(b)(2), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plans, arrangements or agreements, the cash payments provided in Section 3.2 of this Agreement shall first be reduced, and the noncash payments and benefits shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax; provided, however, that the Grandfathered Executive may elect (at any time prior to the payment of any Total Payment under this Agreement) to have the noncash payments and benefits reduced (or eliminated) prior to any reduction of the cash payments under this Agreement.   (b) If the Total Payments exceed 105% of the amount as would trigger the Section 280G(b)(2), then, AEPSC shall pay to the Grandfathered Executive an additional payment (a "Gross-up Payment") in an amount such that after payment by the Grandfathered Executive of all taxes (including any interest or penalties imposed with respect to such taxes, but excluding any such taxes, interest or penalties as may be imposed on the Grandfathered Executive pursuant to Code Section 409A), including any Excise Tax imposed on any Gross-up Payment, the Grandfathered Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments.   (c) All determinations required to be made under this Section 3.4, including the assumptions to be utilized in arriving at such determinations and whether an Excise Tax is payable by the Grandfathered Executive and the amount of such Excise Tax, shall be made by a nationally recognized tax preparation, financial counseling or public accounting firm (the “Tax Firm”) that is experienced in 280G calculations and that is selected by AEPSC prior to the Change in Control.  The Tax Firm shall be directed by AEPSC to submit its preliminary determination and detailed supporting calculations to both AEPSC and the Grandfathered Executive within 15 calendar days after the date of the Grandfathered Executive’s termination of employment, if applicable, and any other such time or times as may be requested by AEPSC or the Grandfathered Executive.  If the Tax Firm determines that Excise Tax would be payable by the Grandfathered Executive if not for the applicability of Section 3.4(a), AEPSC shall reduce the payments as described in said Section 3.4(a) in a manner consistent with determinations made by the Tax Firm.  If the Tax Firm determines that a Gross-up Payment to the Grandfathered Executive is triggered pursuant to Section 3.4(b), AEPSC shall make the Gross-Up Payment attributable thereto.  If the Tax Firm determines that no Excise Tax is payable by the Grandfathered Executive, it shall, at the same time as it makes such determination, furnish the Grandfathered Executive with an opinion that she has substantial authority not to report any Excise Tax on her federal, state, local income or other tax return.  All fees and expenses of the Tax Firm shall be paid by AEPSC in connection with the calculations required by this section.   (d) The federal, state and local income or other tax returns filed by the Grandfathered Executive (or any filing made by a consolidated tax group, which includes AEPSC) shall be prepared and filed on a consistent basis with the determination of the Tax Firm with respect to the Excise Tax payable by the Grandfathered Executive.  The Grandfathered Executive shall make proper payment of the amount of any Excise Tax, and at the request of AEPSC, provide to AEPSC true and correct copies (with any amendments) of her federal income tax return as filed with the Internal Revenue and such other documents reasonably requested by AEPSC, evidencing such payment.   (e) The Grandfathered Executive shall notify AEPSC immediately in writing of any claim by the Internal Revenue Service that, if successful, would require AEPSC to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined under Section 3.4(b)) within five days of the receipt of such claim.  AEPSC shall notify the Grandfathered Executive in writing at least five days prior to the due date of any response required with respect to such claim, or such shorter time period following AEPSC's receipt of the notice, if it plans to contest the claim.  If AEPSC decides to contest such claim, the Grandfathered Executive shall cooperate fully with AEPSC in such action; provided, however, AEPSC shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Grandfathered Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of AEPSC's action.  If the Grandfathered Executive receives a refund of any amount paid by AEPSC with respect to such claim, the Grandfathered Executive shall promptly pay to AEPSC (i) such refund and (ii) the amount of any Gross-up Payment associated with such refund that is not included in the amount of such refund (such as taxes other than federal taxes included in the Gross-up Payment).  If AEPSC fails to timely notify the Grandfathered Executive whether it will contest such claim or AEPSC determines not to contest such claim, then AEPSC shall immediately pay to the Grandfathered Executive the portion of such claim, if any, which it has not previously paid to the Grandfathered Executive as well as the amount of any Gross-up Payment (calculated pursuant to Section 3.4) associated with such payment but that has not otherwise been paid to the Grandfathered Executive.   (f) Unless otherwise required by this Agreement to be paid earlier, any Gross-up Payment required under this Section 3.4 shall be paid no later than the end of the Grandfathered Executive’s taxable year next following the Grandfathered Executive’s taxable year in which the related taxes are remitted to the applicable taxing authority. 3.5           The obligations of AEPSC to pay the benefits described in Sections 3.1, 3.2, and if applicable, 3.4, shall, subject to Section 3.3, be absolute and unconditional and shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which AEPSC may have against the Executive; provided, however, AEPSC shall comply with and enforce obligations of AEPSC or the Executive under law determined by AEPSC to be applicable, including any withholding in order to comply with a court order.  In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, nor shall the amount of any payment hereunder be reduced by any compensation earned by the Executive as a result of employment by another employer. 3.6           Executive alone shall be liable for the payment of any and all tax cost, incremental or otherwise, incurred by the Executive in connection with the provision of any benefits described in this Agreement.  No provision of this Agreement shall be interpreted to provide for the gross-up or other mitigation of any amount payable or benefit provided to the Executive under the terms of this Agreement as a result of such taxes, except to the extent specifically set forth in Section 3.4. 3.7           Notwithstanding any provision of this Agreement to the contrary, if the Executive is a “specified employee” (as determined with respect AEPSC for purposes of Code Section 409A), the Executive shall not be entitled to any payments upon separation of service prior to the earliest of (1) the date that is six months after the date of separation from service for any reason other than death,  (2) the date of the Executive’s death, or (3) such earlier time that would not cause the Executive to incur any excise tax under Code Section 409A. ARTICLE IV SUCCESSOR TO CORPORATION 4.1           This Agreement shall bind any successor of AEPSC or the Corporation, its assets or its businesses (whether direct or indirect, by purchase, merger, consolidation or otherwise) in the same manner and to the same extent that AEPSC or the Corporation would be obligated under this Agreement if no succession had taken place. 4.2           In the case of any transaction in which a successor would not by the foregoing provision or by operation of law be bound by this Agreement, AEPSC and the Corporation shall require such successor expressly and unconditionally to assume and agree to perform AEPSC’s and the Corporation’s obligations under this Agreement, in the same manner and to the same extent that AEPSC and the Corporation would be required to perform if no such succession had taken place.  The term “Corporation,” as used in this Agreement, shall mean the Corporation as hereinbefore defined and any successor or assignee to its business or assets which by reason hereof becomes bound by this Agreement. ARTICLE V MISCELLANEOUS 5.1           Any notices and all other communications provided for herein shall be in writing and shall be deemed to have been duly given when delivered or mailed, by certified or registered mail, return receipt requested, postage prepaid addressed to AEPSC at its principal office and to the Executive at the Executive’s residence or at such other addresses as AEPSC or the Executive shall designate in writing. 5.2           Except to the extent otherwise provided in Article II (Term of Agreement), no provision of this Agreement may be modified, waived or discharged except in writing specifically referring to such provision and signed by either AEPSC or the Executive against whom enforcement of such modification, waiver or discharge is sought.  No waiver by either AEPSC or the Executive of the breach of any condition or provision of this Agreement shall be deemed a waiver of any other condition or provision at the same or any other time. 5.3           The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Ohio. 5.4           The invalidity or unenforceability of any provision of this 5.5           This Agreement does not constitute a contract of employment or impose on the Executive, AEPSC or the Corporation any obligation to retain the Executive as an employee, to change the status of the Executive’s employment, or to change AEPSC’s policies regarding the termination of employment. 5.6           If the Executive institutes any legal action in seeking to obtain or enforce or is required to defend in any legal action the validity or enforceability of, any right or benefit provided by this Agreement, AEPSC will pay for all actual and reasonable legal fees and expenses incurred (as incurred) by the Executive, regardless of the outcome of such action; provided, however, that if such action instituted by the Executive is found by a court of competent jurisdiction to be frivolous, the Executive shall not be entitled to legal fees and expenses and shall be liable to AEPSC for amounts already paid for this purpose. 5.7           If the Executive makes a written request alleging a right to receive benefits under this Agreement or alleging a right to receive an adjustment in benefits being paid under the Agreement, AEPSC shall treat it as a claim for benefit.  All claims for benefit under the Agreement shall be sent to the Human Resources Department of AEPSC and must be received within 30 days after the Executive’s termination of employment.  If AEPSC determines that the Executive who has claimed a right to receive benefits, or different benefits, under the Agreement is not entitled to receive all or any part of the benefits claimed, it will inform the Executive in writing of its determination and the reasons therefor in terms calculated to be understood by the Executive.  The notice will be sent within 90 days of the claim unless AEPSC determines additional time, not exceeding 90 days, is needed.  The notice shall make specific reference to the pertinent Agreement provisions on which the denial is based, and describe any additional material or information, if any, necessary for the Executive to perfect the claim and the reason any such additional material or information is necessary.  Such notice shall, in addition, inform the Executive what procedure the Executive should follow to take advantage of the review procedures set forth below in the event the Executive desires to contest the denial of the claim.  The Executive may within 90 days thereafter submit in writing to AEPSC a notice that the Executive contests the denial of the claim by AEPSC and desires a further review.  AEPSC shall within 60 days thereafter review the claim and authorize the Executive to appear personally and review pertinent documents and submit issues and comments relating to the claim to the persons responsible for making the determination on behalf of AEPSC.  AEPSC will render its final decision with specific reasons therefor in writing and will transmit it to the Executive within 60 days of the written request for review, unless AEPSC determines additional time, not exceeding 60 days, is needed, and so notifies the Executive.  If AEPSC fails to respond to a claim filed in accordance with the foregoing within 60 days or any such extended period, AEPSC shall be deemed to have denied the claim. AEPSC has caused this Change In Control Agreement to be signed on behalf of all participating employers effective as of the 1st day of November, 2009.   American Electric Power Service Corporation           By  /s/ Michael G. Morris          Michael G. Morris  

Exhibit 10.59 AWARD AGREEMENT This Award Agreement (this ‘Agreement’), is made as of this [•] day of [•], 2015, between Teva Pharmaceutical Industries Limited (the ‘Company’) and [•] (the ‘Participant’). Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Company’s 2010 Long-Term Equity-Based Incentive Plan (the ‘Plan’). Pursuant to the terms of the Plan, the Company grants to the Participant as of the Grant Date the number of Options and Restricted Share Units (RSUs) (Options and RSUs are collectively and individually referred to herein as ‘Awards’) set forth below, subject to the terms and conditions contained herein and in the appendices attached hereto, as well as the terms and conditions of the Plan, which are incorporated herein in their entirety.   Total Fair Value of Award:      [•] Fair Value of each Option:    $[•] Fair Value of each RSU:    $[•] Options Granted:    [•] Representing approximately 50% of the Total Fair Value of Award divided by the Fair Value of each Option. Calculated as follows: the difference between the total fair value of the award and the total fair value of the number of RSUs granted is divided by the fair value of each Option, and the result is rounded up to the nearest whole number. RSUs Granted:    [•] Representing approximately 50% of the Total Fair Value of Award divided by the Fair Value of each RSU. Calculated as follows: 50% of the total fair value of the award is divided by the fair value of each RSU, and the result is rounded down to the nearest whole number. Grant Date:    [•] Vesting of 1st Fourth ( 1⁄4) of Grant:    First Anniversary of Grant Date Vesting of 2nd Fourth ( 1⁄4) of Grant:    Second Anniversary of Grant Date Vesting of 3rd Fourth ( 1⁄4) of Grant:    Third Anniversary of Grant Date Price:    USD [•], the NYSE closing price of Teva ADSs on the Grant Date Option Expiration Date:    Tenth Anniversary of the Grant Date. 1. Options. (a)Grant of Options. As set forth above, the Company grants to the Participant, as of the Grant Date, Options in a number to be determined as set forth in the table above, to purchase up to, but not exceeding in the aggregate, an equal number of Shares. (b)No Obligation to Exercise Options. The grant and acceptance of the Options impose no obligation on the Participant to exercise them. 2. Restricted Share Units. (a)Grant of Restricted Share Units. As set forth above, the Company grants to the Participant, as of the Grant DatefV, an Award of Restricted Share Units, in a number to be determined as set forth in the table above. (b)No Issuance at Grant. No Shares shall be issued or delivered to the Participant at the time the Restricted Share Units are granted. 3. Other Provisions. (a) Vesting. Subject to the Participant; ‘, s continuous employment with the Company and its subsidiaries and affiliates through the applicable vesting dates, Awards shall vest and become exercisable (or settle, as the case may be), as set forth in the table above. (b) No Rights as a Shareholder. The Participant shall have no rights as a shareholder with respect to any Shares covered by the Options or Restricted Share Units until the date of issuance of the underlying Shares. (c) Termination of Employment. (i) In the event of a Participant’s Termination with the Employer prior to the Expiration Date for any reason other than (A) the Participant’s death or Disability, (B) a Qualifying Retirement, or (C) by the Employer for Cause, (1) all vesting with respect to such Participant’s Options and Restricted Share Units shall cease, (2) all of such Participant’s unvested Options shall expire as of the date of such Termination, and (3) all of such Participant’s vested Options shall remain exercisable until the earlier of the Expiration Date and the date that is ninety (90) days after the date of such Termination. (ii) In the event of a Participant’s Termination with the Employer prior to the Expiration Date by reason of such Participant’s death, Disability or Qualifying Retirement, (A) all of such Participant’s Options and Restricted Share Units shall continue to vest in accordance with their   2 original vesting schedule as if no such termination had occurred, and (B) Options shall remain exercisable until the Expiration Date. In the event of a Participant’s death, such Participant’s Options shall be exercisable by the person or persons to whom a Participant’s rights under the Options pass by will or the applicable laws of descent and distribution until the Expiration Date. (iii) In the event of a Participant’s Termination with the Employer prior to the Expiration Date by the Employer for Cause, all of such Participant’s Options (whether or not vested) shall immediately expire and all Restricted Share Units shall be forfeited as of the date of such Termination. (d) Withholding. The Company or the Participant’s employer, or a third party holding Awards on behalf of the Participant, shall have the right to make all payments or distributions pursuant to this Agreement to a Participant net of any applicable taxes, fees or other required deductions, such as but not limited to income taxes, social security premiums, and custody fees, trustee charges, fees for exercise and/or transfer of any Award or its underlying Share payable by the Participant or required to be paid or withheld as a result of the exercise of an Option, the settlement of a Restricted Share Unit, the delivery of a Share or its transfer, and any other event occurring pursuant to the Plan or this Agreement, that necessitates the withholding of income or employment taxes or any other required deductions or payments (hereinafter referred to as -Taxes-). The Company or the Participant’s employer, may withhold from wages or other amounts payable to a Participant such Taxes as may be required by law or otherwise payable by the Participant, or to otherwise require the Participant to pay such Taxes. (e) Other Effective Documents; Other Agreements. The terms and provisions of the Plan are incorporated herein by reference and made a part hereof. In case of contradiction between the terms of this Agreement and/or its Appendices and/or the Plan, it is agreed that the terms of the Plan shall prevail over the terms of the Agreement and any appendix, and that the terms of any appendix shall prevail of the terms of the Agreement. The Participant agrees to (i) execute and become a party to the agreements set forth in any appendix attached hereto, and (ii) the terms of an Award administration framework agreement and its terms and conditions, as may be set forth in an appendix or as requested by the Employer in the future, and will also agree to such agreement in writing. (f) Binding Effect. This Agreement shall be binding upon the heirs, executors, administrators, and successor of the parties hereto. (g) Governing Law. This Agreement (including, for the avoidance of doubt, its appendices) shall be construed and interpreted in accordance with the local laws of country where the Participant is or was last employed by the Company or its Affiliate, as applicable, without giving effect to the principles of the conflicts of laws thereofe. (h) Entire Agreement; Modification. This Agreement (together with the appendices attached hereto) and the Plan constitute the entire agreement between the parties relative to the subject matter hereof, and supersede all proposals, written or oral, and all other communications between the parties relating to the subject matter of this Agreement. This Agreement may be modified, amended, or rescinded only by a written agreement executed by both parties.   3 (i) Counterparts, Electronic Signature. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Signature of the Agreement, unless otherwise stipulated in any appendix, may be by electronic or digital means. I acknowledge that I have read the Award Agreement above and I   LOGO [g529462g53v58.jpg]   4

U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q/A [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended June 30, 2009 [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from Commission File No. 000-52521 Jag Media Group, Inc. (Name of Small Business Issuer in its charter) Colorado 27-0463459 (State or other jurisdiction of (I.R.S. employer incorporation or formation) identification number) 17120 North Dallas Parkway

IR BIOSCIENCES HOLDINGS, INC. 4021 North 75th Street Suite 201 Scottsdale, Arizona 85251 June 21, 2007 VIA EDGAR AND FEDERAL EXPRESS Division of Corporation Finance United States Securities and Exchange Commission 100 F Street, North East Washington, D.C. 20549 Attn: Goldie Walker Re: IR BioSciences Holdings, Inc. Amendment No. 1 to Registration Statement on Form SB-2/A File No: 333-143756 Form AW Application for Withdrawal Dear Ms. Walker: Pursuant to the request made by your office, please accept this as the above registrant's application for withdrawal of the above Amendment No. 1 to the Registration Statement filed on June 19, 2007.The purpose of withdrawal is that the above Amendment No. 1 to Registration Statement should be filed as a new Registration Statement not an Amendment.We will re-file a new Registration Statement today. Sincerely, IR BioSciences Holdings, Inc. /s/ Michael K. Wilhelm Name: Michael K. Wilhelm Title: Chief Executive Officer

  EXCALIBUR TECHNOLOGIES CORPORATION 1995 INCENTIVE PLAN Section 1.  Purpose: Definitions   The purpose of the Excalibur Technologies Corporation 1995 Incentive Plan (the “Plan”) is to enable Excalibur Technologies Corporation (the “Company”) to attract, retain and reward key employees of the Company and its Subsidiaries and Affiliates, and strengthen the mutuality of interest between such key employees and the Company’s stockholders by offering such key employees performance-based stock incentives and/or other equity interests or equity-based incentives in the Company, as well as performance-based incentives payable in cash. For purposes of the Plan the following terms shall be defined as set forth below: (a)           “Affiliate” means any entity other than the Company and its Subsidiaries that is designated by the Board as a participating employer under the Plan, provided that the Company directly or indirectly owns at least 20% of the combined voting power of all classes of stock of such entity or at least 20% of the ownership interests in such entity. (c)           “Book Value” means as of any given date, on a per share basis (i) the stockholders’ Equity in the Company as of the end of the immediately preceding fiscal year as reflected in the Company’s consolidated balance sheet, subject to such adjustments as the Committee shall specify at or after grant, divided by (ii) the number of then outstanding shares of Stock as of such year-end date (as adjusted by the Committee for subsequent events). (d)           “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor thereto. (e)           “Committee” means the Committee referred to in Section 2 of the Plan.  If at any time no Committee shall be in office, then the functions of the Committee specified in the Plan shall be exercised by the Board. (f)           “Company” means Excalibur Technologies Corporation, a corporation organized under the laws of the State of Delaware, or any successor corporation. (g)           “Disability” means disability as determined under procedures established by the Committee for purposes of this Plan. (h)           “Disinterested Person” shall have the meaning set forth in Rule 16b-3(d)(3) as promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934 (the “Exchange Act”), or any successor definition adopted by the Commission. (i)           “Fair Market Value” means as of any given date, unless otherwise determined by the Committee in good faith, the mean between the highest and lowest quoted bid price, regular way, of the Stock on the NASDAQ System or, if no such sale of Stock occurs on such date, the fair market value of the Stock as determined by the Committee in good faith. (j)           “Incentive Stock Option” means any Stock Option intended to be and designated as an “Incentive Stock Option” within the meaning of Section 422A of the Code. (k)           “Non-Qualified Stock Option” means any Stock Option that is not an Incentive Stock Option. (l)           “Other Stock-Based Award” means an award under Section 6 below that is valued in whole or in part by reference to, or is otherwise based on, Stock.   (m)           “Stock” means the Common Stock, $.01 par value per share of the Company. (n)           “Stock Option” or “Option” means any option to purchase shares of Stock (including Restricted Stock and Deferred Stock, if the Committee so determines) granted pursuant to Section 5 below. (o)           “Subsidiary” means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if the corporation (other than the last corporation in the unbroken chain) owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in the chain. In addition, the terms “Change in Control” and “Change in Control Price” shall have the meanings set forth, respectively, in Sections 11(b), (c) and (d) below and the term “Cause” shall have the meaning set forth in Section 5(i) below. SECTION 2.  Administration The Plan shall be administered by a Committee of no fewer than two Disinterested Persons, who shall be appointed by the Board and who shall serve at the pleasure of the Board.  The functions of the Committee specified in the Plan shall be exercised by the Board, if and to the extent that no Committee exists which has the authority to so administer the Plan. The Committee shall have full authority to grant, pursuant to the terms of the Plan, to officers and other key employees eligible under Section 4:  (i) Stock Options, and/or (ii) Other Stock-Based Awards. In particular, the Committee shall have the authority: (a)           to select the officers and other key employees of the Company and its Subsidiaries and Affiliates to whom Stock Options and/or Other Stock-Based Awards may from time to time be granted hereunder; (b)           to determine whether and to what extent Incentive Stock Options, Non-Qualified Stock Options, and/or Other Stock-Based Awards, or any combination thereof, are to be granted hereunder to one or more eligible employees; (c)           to determine the number of shares to be covered by each such award granted hereunder; (d)           to determine the terms and conditions, not inconsistent with the terms of the Plan, of any award granted hereunder (including, but not limited to, the share price and any restriction or limitation, or any vesting acceleration or waiver of forfeiture restrictions regarding any Stock Option or other award and/or the shares of Stock relating thereto, based in each case on such factors as the Committee shall determine, in its sole discretion); (e)           to determine whether and under what circumstances a Stock Option may be settled in cash, Restricted Stock and/or Deferred Stock under Section 5(k) or (l), as applicable, instead of Stock; (f)           to determine whether, to what extent and under what circumstances grants and/or other awards under the Plan and/or other cash awards made by the Company are to be made, and  operate, on a tandem basis vis-à-vis other awards under the Plan and/or cash awards made outside of the Plan, or on an additive basis; (g)           to determine whether, to what extent and under what circumstances Stock and other amounts payable with respect to an award under this Plan shall be deferred either automatically or at the election of the participant (including providing for and determining the amount (if any) of any deemed earnings on any deferred amount during any deferral period); (h)           to determine the terms and restrictions applicable to Stock Purchase Rights and the Stock purchased by exercising such Rights; and (i)           to grant with the consent of the optionee, in substitution for outstanding Stock Options, replacement Stock Options, which may be at a lower exercise price, provided that, in the case of Incentive Stock Options, at an exercise price less than the Fair Market Value of the Stock at the time of replacement. The Committee shall have the authority to adopt, alter and repeal such rules, guidelines and practices governing the Plan as it shall, from time to time, deem advisable; to interpret the terms and provisions of the Plan and any award issued under the Plan (and any agreements relating thereto); and to otherwise supervise the administration of the Plan. All decisions made by the Committee pursuant to the provisions of the Plan shall be made in the Committee’s sole discretion and shall be final and binding on all persons, including the Company and Plan participants. SECTION 3.  Stock Subject to Plan The total number of shares of Stock reserved and available for distribution under the Plan shall be 400,000 shares.  Such shares may consist, in whole or in part, of authorized and unissued shares or treasury shares. Subject to Section 6(b)(iv) below, if any shares of Stock that have been optioned cease to be subject to a Stock Option, or if any such shares of Stock that are subject to any Restricted Stock or Deferred Stock award, Stock Purchase Right or other Stock-Based Award granted hereunder are forfeited or any such award otherwise terminates, without a payment being made to the participant in the form of Stock, such shares shall again be available for distribution in connection with future awards under the Plan. stock dividend, stock split spin-offs, spin-outs or other change in corporate structure affecting the Stock, such substitution or adjustment shall be made in the aggregate number of shares reserved for issuance under the Plan, in the number and option price of shares subject to outstanding Options granted under the Plan, in the number and purchase price of shares subject to outstanding Stock Purchase Rights under the Plan, and in the number of shares subject to other outstanding awards granted under the Plan as may be determined to be appropriate by the Committee, in its sole discretion, provided that the number of shares subject to any award shall always be a whole number.  Such adjusted option price shall also be used to determine the amount payable by the Company upon the exercise of any Stock Appreciation Right associated with any Stock Option. SECTION 4.  Eligibility Officers, directors and key employees of the Company and its Subsidiaries and Affiliates (but excluding members of the Committee) and any other individual as determined by the Committee who are responsible for or contribute to the management, growth and/or profitability of the business of the Company and/or its Subsidiaries and Affiliates are eligible to be granted awards under the Plan. SECTION 5  Stock Options Stock Options may be granted alone, in addition to or in tandem with other awards granted under the Plan and/or cash awards made outside of the Plan.  Any Stock Option granted under the Plan shall be in such form as the Committee may from time to time approve. Stock Options granted under the Plan may be of two types:  (i) Incentive Stock Options and (ii) Non-Qualified Stock Options. The Committee shall have the authority to grant to any optionee Incentive Stock Options, Non-Qualified Stock Options, or both types of Stock Options (in each case with or without Stock Appreciation Rights). Options granted under the Plan shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee shall deem desirable: (a)           Option Price.  The option price per share of Stock purchasable under an Incentive Stock Option shall be determined by the Committee at the time of grant but shall be not less than 100% of the Fair Market Value of the Stock at the time of grant.  Non-Qualified Stock Options may, in the discretion of the Committee, may be granted at a price per share less than the Fair Market Value of the Stock at the time of grant. (b)           Option Term.  The term of each Stock Option shall be fixed by the Committee, but no Stock Option shall be exercisable more than ten years after the date the Option is granted. (c)           Exercisability.  Stock Options shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at or after grant.  If the Committee provides, in its sole discretion, that any Stock Option is exercisable only in installments, the Committee may waive such installment exercise provisions at any time at or after grant in whole or in part, based on such factors as the Committee shall determine, in its sole discretion. (d)           Method of Exercise.  Subject to whatever installment exercise provisions apply under Section 5(c), Stock Options may be exercised in whole or in part at any time during the option period by giving written notice of exercise to the Company specifying the number of shares to be purchased.  Such notice shall be accompanied by payment in full of the purchase price, either by check, note or such other instrument as the Committee may accept.  As determined by the Committee, in its sole discretion, at of after grant, payment in full or in part may also be made in the form of Stock or, in the case of the exercise of a Non-Qualified Stock Option, Restricted Stock or Deferred Stock subject to an award hereunder (based, in each case, on the Fair Market Value of the Stock on the date the option is exercised, as determined by the Committee). No shares of Stock shall be issued until full payment therefor has been made.  An optionee shall generally have the rights to dividends or other rights of a shareholder with respect to shares subject to the Option when the optionee has given written notice of exercise, has paid in full for such shares, and if requested, has given the representation described in Section 10(a). (e)           Non-Transferability of Options.  No Stock Option shall be transferable by the optionee otherwise than by will or by the laws of descent and distribution, and all Stock Options shall be exercisable, during the optionee’s lifetime, only by the optionee. (f)           Termination by Death.  Subject to Section 5(j), if an optionee’s employment by the Company or any Subsidiary or Affiliate terminates by reason of death, any Stock Option held by such optionee may thereafter be exercised, to the extent such option was exercisable at the time of death or on such accelerated basis as the Committee may determine at or after grant (or as may be determined in accordance with procedures established by the Committee), by the legal representative of the estate or by the legatee of the optionee under the will of the optionee, for a period of one year (or such other period as the Committee may specify at grant) from the date of such death or until the expiration of the stated term of such Stock Option, whichever period is the shorter. (g)           Termination by Reason of Disability.  Subject to Section 5(j), if an optionee’s employment by the Company and any Subsidiary or Affiliate terminates by reason of Disability, any Stock Option held by such optionee may thereafter be exercised by the optionee, to the extent it was exercisable at the time of termination or on such accelerated basis as the Committee may determine at or after grant (or as may be determined in accordance with procedures established by the Committee), for a period of one year (or such other period as the Committee may specify at grant) from the date of such termination of employment or until the expiration of the stated term of such Stock Option, whichever period is the shorter, provided, however, that if the optionee dies within such one-year period (or such other period as the Committee shall specify at grant), any unexercised Stock Option held by such optionee shall thereafter be exercisable to the extent to which it was exercisable at the time of death for a period of one year from the date of such death or until the expiration of the stated term of such Stock Option, whichever period is the shorter.  In the event of termination of employment by reason of Disability, if an Incentive Stock Option is exercised after the expiration of the exercise periods that apply for purposes of Section 422A of the Code, such Stock Option will thereafter be treated as a Non-Qualified Stock Option. (h)           Other Termination.  Unless otherwise determined by the Committee (or pursuant to procedures established by the Committee) at or after grant, if the employment of an optionee by the Company or any Subsidiary or Affiliate terminates for any reason other than death or Disability, the Stock Option shall thereupon terminate, except that such Stock Option may be exercised, to the extent otherwise then exercisable, for the lesser of three months or the balance of such Stock Option’s term if the optionee is involuntarily terminated by the Company or any Subsidiary or Affiliate without Cause.  For purposes of this Plan, “Cause” means a felony conviction of an optionee or the failure of an optionee to contest prosecution for a felony, or an optionee’s willful misconduct or dishonesty, any of which is directly and materially harmful to the business or reputation of the Company or any Subsidiary or Affiliate. (i)           Incentive Stock Options.  Anything in the Plan to the contrary notwithstanding, no term of this Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under this Plan be so exercised, so as to disqualify the Plan under Section 422A of the Code, or without consent of the optionee(s) affected, to disqualify any Incentive Stock Option under such Section 422A. To the extent required for “incentive stock option” status under Section 422A(b)(7) of the Code (taking into account applicable Internal Revenue Service regulations and pronouncements), the Plan shall be deemed to provide that the aggregate Fair Market Value (determined as of the time of grant) of the Stock with respect to which Incentive Stock Options granted are exercisable for the first time by the optionee during any calendar year under the Plan and/or any other stock option plan of the Company or any Subsidiary or parent corporation (within the meaning of Section 425 of the Code) shall not exceed $100,000.  If Section 422A is hereafter amended to delete the requirement now in Section 422A(b)(7) that the plan text expressly provide for the $100,000 limitation set forth in Section 422A(b)(7), then this first paragraph of Section 5(i) shall no longer be operative. (j)           Buyout Provisions.  The Committee may at any time offer to buy out for a payment in cash Stock, Deferred Stock or Restricted Stock an option previously granted, based on such terms and conditions as the Committee shall establish and communicate to the optionee at the time that such offer is made. (k)           Settlement Provisions.  If the option agreement so provides at grant or is amended after grant and prior to exercise to so provide (with the optionee’s consent), the Committee may require that all or part of the shares to be issued with respect to the spread value of an exercised Option take the form of Deferred or Restricted Stock, which shall be valued on the date of exercise on the basis of the Fair Market Value (as determined by the Committee) of such Deferred or Restricted Stock determined without regard to the deferral limitations and/or forfeiture restrictions involved. SECTION 6.  Other Stock-Based Awards (a)           Administration.  Other awards of Stock and other awards that are valued in whole or in part by reference to, or are otherwise based on, Stock (“Other Stock-Based Awards”), including, without limitation, performance shares, convertible preferred stock, convertible debentures, exchangeable securities and Stock awards or options valued by reference to Book Value or subsidiary performance, may be granted either alone or in addition to or in tandem with Stock Options granted under the Plan and/or cash awards made outside of the Plan. Subject to the provision of the Plan, the Committee shall have authority to determine the persons to whom and the time or times at which such awards shall be made, the number of shares of Stock to be awarded pursuant to such awards, and all other conditions of the awards.  The Committee may also provide for the grant of Stock upon the completion of a specified performance period. The provisions of Other Stock-Based Awards need not be the same with respect to each recipient. (b)           Terms and Conditions.  Other Stock-Based Awards made pursuant to this Section 6 shall be subject to the following terms and conditions: (i)           Subject to the provision of the Plan and the award agreement referred to in Section 6(b)(v) below, shares subject to awards made under this Section 6 may not be sold, assigned, transferred, pledged or otherwise encumbered prior to the date on which the shares are issued, or, if later, the date on which any applicable restriction, performance or deferral period lapses. (ii)           Subject to the provisions of the Plan and the award agreement and unless otherwise determined by the Committee at grant, the recipient of an award under this Section 6 shall be entitled to receive, currently or on a deferred basis, interest or dividends or interest or dividend equivalents with respect to the number of shares covered by the award, as determined at the time of the award by the Committee, in its sole discretion, and the Committee may provide that such amounts (if any) shall be deemed to have been reinvested in additional Stock or otherwise reinvested. (iii)           Any award under this Section 6 and any Stock covered by any such award shall vest or be forfeited to the extent so provided in the award agreement, as determined by the Committee, in its sole discretion. (iv)           In the event of the participant’s retirement, disability or death, or in cases of special circumstances, the Committee may, in its sole discretion, waive in whole or in part any or all of the remaining limitations imposed hereunder (if any) with respect to any or all of an award under this Section 6. (v)           Each award under this Section 6 shall be confirmed by, and subject to the terms of, an agreement or other instrument by the Company and by the participant. (vi)           Stock (including securities convertible into Stock) issued on a bonus basis under this Section 6 may be issued for no cash consideration.  Stock (including securities convertible into Stock) purchased pursuant to a purchase right awarded under this Section 6 shall be priced at least 50% of the Fair Market Value of the Stock on the date of grant. SECTION 7.  Change in Control Provisions (a)           Impact of Event.  In the event of a “Change in Control” as defined in Section 7(b) unless otherwise decided by the Committee, the following acceleration and valuation provisions shall apply: (i)           Any Stock Apprecation Rights (including, without limitation, any Limited Appreciation Rights) outstanding for at least six months and any Stock Options awarded under the Plan not previously exercisable and vested shall become fully exercisable and vested. (ii)           The restrictions and deferral limitations applicable to any Restricted Stock, Deferred Stock, Stock Purchase rights and Other Stock-Based Awards, in each case to the extent not already vested under the Plan, shall lapse and such shares and awards shall be deemed fully vested. (iii)           The value of all outstanding Stock Options, Stock Appreciation Rights, Restricted Stock, Deferred Stock, Stock Purchase Rights and Other Stock-Based Awards, in each case to the extent vested, shall, unless otherwise determined by the Committee in its sole discretion at or after grant but prior to any Change in Control, be cashed out on the basis of the “Change in Control Price” as defined in Section 7(d) as of the date such Change in Control is determined to have occurred or such other date as the Committee may determine prior to the Change in Control. (b)           Definition of “Change in Control”.  For purposes of Section 7(a), a “Change in Control” means the happening of any of the following: (i)           When any “person” as defined in Section 3(a)(9) of the Exchange Act and as used in Section 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act but excluding the Company and any Subsidiary and any employee benefit plan sponsored or maintained by the Company or any Subsidiary (including any trustee of such plan acting as trustee), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13(d)-3 under the Exchange Act, as amended from time to time), of securities of the Company representing 20 percent or more of the combined voting power of the Company’s then outstanding securities; (ii)           When, during any period of 24 consecutive months during the existence of the Plan, the individuals who, at the beginning of such period, constitute the Board (the “Incumbent Directors”) cease for any reason other than death to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such 24-month period shall be deemed to have satisfied such 24-month requirement (and be an Incumbent Director) if such director was elected by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually (because they were directors at the beginning of such 24-month period) or by prior operation of this Section 7(b)(ii); or (iii)           The occurrence of a transaction requiring stockholder approval for the acquisition of the Company by an entity other than the Company or a Subsidiary through purchase of assets, or by merger, or otherwise. (c)           Change in Control Price.  For purposes of this Section 7, “Change in Control Price” means the highest price per share bid in any transaction reported on the NASDAQ System, or paid or offered in any bona fide transaction related to a Change in Control of the Company at any time during the 60 day period immediately preceding the occurrence of the Change in Control, in each case as determined by the Committee except that, in the case of Incentive Stock Options and Stock Appreciation Rights relating to Incentive Stock Options, such price shall be based only on transactions reported for the date on which the optionee exercises such Stock Appreciation Rights (or Limited Stock Appreciation Rights) or, where applicable, the date on which a cashout occurs under Section 7(a)(ii). SECTION 8.  Amendment and Termination The Board may amend, alter, or discontinue the Plan, but no amendment, alteration, or discontinuation shall be made which would impair the rights of an optionee or participant under a Stock Option, Stock Appreciation Right (or Limited Stock Appreciation Right), Restricted or Deferred Stock award, Stock Purchase Right or Other Stock-Based Award theretofore granted, without the optionee’s or participant’s consent, or which, without the approval of the Company’s stockholders, would cause the Plan to no longer comply with Rule 16b-3 under the Exchange Act or any successor rule or other regulatory requirements. The Committee may amend the terms of any Stock Option or other award theretofore granted, prospectively or retroactively, but, subject to Section 3 above, no such amendment shall impair the rights of any holder without the holder’s consent. Subject to the above provisions, the Board shall have broad authority to amend the Plan to take into account changes in applicable securities and tax laws and accounting rules. SECTION 9.  Unfunded Status of Plan The Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation.  With respect to any payments not yet made to a participant or optionee by the Company, nothing contained herein shall give any such participant or optionee any rights that are greater than those of a general creditor of the Company.  In its sole discretion, the Committee may authorize the creation of trusts or other arrangements to meet the obligations created under the Plan to deliver Stock or payments in lieu of or with respect to awards hereunder, provided, however, that, unless the Committee otherwise determines with the consent of the affected participant, the existence of such trusts or other arrangements is consistent with the “unfunded” status of the Plan. SECTION 10.  General Provisions (a)           The Committee may require each person purchasing shares pursuant to a Stock Option or other award under the Plan to represent and to agree with the Company in writing that the optionee or participant is acquiring the shares without a view to distribution thereof.  The certificates for such shares may include any legend which the Committee deems appropriate to reflect any restrictions on transfer. All certificates for shares of Stock or other securities delivered under the Plan shall be subject to such stock-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Stock is then listed, and any applicable Federal or state securities law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. (b)           Nothing contained in the Plan shall prevent the Board from adopting other or additional compensation arrangements, subject to stockholder approval if such approval is required; and such arrangements may be either generally applicable or applicable only in specific cases. (c)           The adoption of the Plan shall not confer upon any employee of the Company or any Subsidiary or Affiliate any right to continued employment with the Company or a Subsidiary or Affiliate, as the case may be, nor shall it interfere in any way with the right of the Company or a Subsidiary or Affiliate to terminate the employment of any of its employees at any time. (d)           No later than the date as of which an amount first becomes includible in the gross income of the participant for Federal income tax purposes with respect to any award under the Plan, the participant shall pay to the Company, or make arrangements satisfactory to the Committee regarding the payment of, any Federal, state, or local taxes of any kind required by law to be withheld with respect to such amount.  Unless otherwise determined by the Committee, withholding obligations may be settled with Stock, including Stock that is part of the award that gives rise to the withholding requirement.  The obligations of the Company under the Plan shall be conditional on such payment or arrangements and the Company and its Subsidiaries and Affiliates shall, to the extent permitted by law, have the right to deduct any such taxes from any payment or any kind otherwise due to the participant. (e)           The actual or deemed reinvestment of dividends or dividend equivalents in additional Restricted Stock (or in Deferred Stock or other types of Plan awards) at the time of any dividend payment shall be permissible only if sufficient shares of Stock are available under Section 3 for such reinvestment (taking into account then outstanding Stock Options, Stock Purchase Rights and other Plan awards). (f)           The Plan and all awards made and actions taken thereunder shall be governed by and construed in accordance with the laws of the State of Delaware. SECTION 11.  Effective Date of Plan The Plan shall be effective as of June 28, 1995, subject to the approval of the Plan by a majority of the votes cast by the holders of Stock at the next annual stockholder’s meeting in 1995.  Any grants made under the Plan prior to such approval shall be effective when made (unless otherwise specified by the Committee at the time of grant), but shall be conditioned on, and subject to, such approval of the Plan by such shareholders. SECTION 12.  Term of Plan No Stock Option or Other Stock-Based Award shall be granted pursuant to the Plan on or after the tenth anniversary of the date of stockholder approval, but awards granted prior to such tenth anniversary may extend beyond that date.      

Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We have reviewed the entire S-1 filing statement for Redfield Ventures, Inc. We have also analyzed the analytical sections and their conclusions as derived from the Audited Financial Statements we prepared. We are in agreement as to their correctness as presented in this document. We hereby consent to the use in the Registration Statement (Form S-1) pertaining to the registration of 9,500,000 shares of common stock of Redfield Ventures, Inc. of our Audit Report dated August 1, 2012 with respect to the financial statement of Redfield Ventures, Inc. for the period ended June 30, 2012. We also consent to the reference to us as “Experts” in the above referenced Registration Statement. /s/ John Scrudato CPA Califon New Jersey November 20, 2012

Title: [WA] new apartment "amenity" is destroying my health Question:My apartment building just constructed a new communal "party room" that's open 24/7 unlike the other amenity spaces that are closed down at 10pm for quiet hours. And unlike quiet hours this space is exempt according to management. It's also located just 10 feet from my apartment's bedroom. I haven't been able to sleep for the last week because of the parties that go until 2-3am or sometimes even later. When I called the security I've gotten responses ranging from "wear ear plugs" to "suck it up" to "don't be an old grump" and of course they don't come out, even when people are screaming in there at 2am. I've called the cops and they've issued noise citations to people, but they just complain to the management who then turns to me saying I've violated core rules of the community by not using the security or the office as dispute management (but I can't find anything about that in the lease? and it seems illegal to say I can't call the cops if they're violating city noise ordinances and affecting my health.) Anyway the real problem comes down to my health. I have trouble sleeping and I haven't been able to sleep more than 2 hours a night for nearly two weeks since they opened it. I collapsed at work from exhaustion and woke up in the hospital. I need rest but I can't get it at home and I think I'm going to end up in the hospital again soon at this rate. I feel awful and just want to die. I have no energy and I'm suffering at work and my boss says I need to get my shit togther. But the apartment is saying that I can't break my lease for these health reasons. I would never have moved here if I'd known that 4 months after signing my lease they would turn one of my neighboring apartments into a 24/7 loud party room so I could never sleep. How can iget out of htis and get to a place I can live in? Answer #1: Look into local noise ordinances in your city/county. Also check your lease for language about noises. Many leases have language about noise levels and many give the landlord absolute discretion on what is noise disturbance. You want to document every complaint you make. Record the noise on your phone as evidence. I had a similar situation back when I used to rent. I called the cops every time there was a noise issue to the point where the police notified my landlord that this was an issue. I also asked other neighbors if they had an issue with this noise (it was a tenant) and they did so they called as well. In the mean time, ear plugs DO work to a certain degree. They take time to get used to but they work. Answer #2: IANAL: "Don't be an old grump"? Who owns this complex? A couple of rich kids who bought it with Daddy's money? This is not really something I'd expect to see or hear from a normal property management company, because a 24-hour "party room" just sounds like a super-duper bad idea and a great way to drop rent values. You absolutely can call the cops. I'll iterate again that IANAL, *but*, I am under the impression that nobody can make you sign a contract (and uphold it) that prevents you from reporting actively on-going criminal activity -- which noise violations and trespassing may very well fall under. If they try to evict you or take action against you for calling the cops, they're setting themselves up for one hell of a lawsuit. If you suspect this could even be the tiniest, remotest possibility, make darn certain you keep every voicemail, email, notice, and correspondence, and you don't let them do anything "by mouth." So, while you are lodging noise complaints -- look up and see who *actually* owns that property. Do not bother with the front office staff. It sounds like they're all college kids anyway without a lick of sense. Take out your lease and see who it is that you're actually writing checks to. Most complexes are owned by a larger management company. Call and write a certified letter to their corporate office and send along copies of your reports and correspondences with the staff there. I'm sure someone who likes to cash rent checks will take notice. Also note that you have a presumed legal right to peace and quiet, and by setting up this room in the middle of your lease and letting people 'party hard' 24-7 in it, they're actually breaking your lease. That doesn't mean "don't pay your rent", but it may be worth talking to a lawyer about breaking you out of that lease if you can not get any solution from the management company. Answer #3: If you're in Seattle, there is a city noise ordinance that specifically addresses this issue: http://www.seattle.gov/police/prevention/Neighborhood/noise.htm Also, if the building management attempts to interfere *in any way* with your access to courts or law enforcement, *document this.* This kind of interference is illegal in more ways than I can count, and evidence of it will go a long way to help you in any kind of formal proceeding.Answer #4: Every state has a tenant's rights association. In Washington it's the [The Tenants Union of Washington State](http://www.tenantsunion.org/en). In my experience these organizations are a fantastic and very responsive resource. Contact them immediately and they will be able to help you. Answer #5: &gt;but they just complain to the management who then turns to me saying I've violated core rules of the community by not using the security or the office as dispute management Tell them to kiss your ass. This isn't a dorm and you're not calling the RA. You have every right to call the police every night at 10:05 when they are being loud. In fact, my advice would be to do just that. Call every single night.Answer #6: Landlord here. Edit: Your state laws are here: http://apps.leg.wa.gov/rcw/default.aspx?cite=59.18 The SPECIFIC law is here: http://apps.leg.wa.gov/rcw/default.aspx?cite=59.18.130 Which states: &gt; RCW 59.18.130 &gt; Duties of tenant. &gt; (5) Not permit a nuisance So the tenants are in violation, and you can ask the landlord to take action. Read this page for a great overview: http://www.tenantsunion.org/en/rights/negotiation-process If I were you, I would send the complaint to the landlord in writing, and I recommend sending it USPS overnight, certified mail, return receipt, stating briefly and politely that they are violating the law, and any future incidents will result in legal action. Pretty cut and dry here. WA state also has a non-retaliation clause here: http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.240 and here: http://app.leg.wa.gov/RCW/default.aspx?cite=59.18.250 Read all those laws, know them, THEN take action.

Exhibit 10.1   MORGAN STANLEY 2007 EQUITY INCENTIVE COMPENSATION PLAN (Amended and Restated as of March 10, 2009) 1.   Purpose. The primary purposes of the Morgan Stanley 2007 Equity Incentive Compensation Plan are to attract, retain and motivate employees, to compensate them for their contributions to the growth and profits of the Company and to encourage them to own Morgan Stanley Stock. 2.            Definitions. Except as otherwise provided in an applicable Award Document, the following capitalized terms shall have the meanings indicated below for purposes of the Plan and any Award: “Administrator” means the individual or individuals to whom the Committee delegates authority under the Plan in accordance with Section 5(b). “Award” means any award of Restricted Stock, Stock Units, Options, SARs or Other Awards (or any combination thereof) made under and pursuant to the terms of the Plan. “Award Date” means the date specified in a Participant’s Award Document as the grant date of the Award. “Award Document” means a written document (including in electronic form) that sets forth the terms and conditions of an Award. Award Documents shall be authorized in accordance with Section 12(e). “Board” means the Board of Directors of Morgan Stanley. “Code” means the Internal Revenue Code of 1986, as amended, and the applicable rulings, regulations and guidance thereunder. “Committee” means the Compensation, Management Development and Succession Committee of the Board, any successor committee thereto or any other committee of the Board appointed by the Board to administer the Plan or to have authority with respect to the Plan, or any subcommittee appointed by such Committee. “Company” means Morgan Stanley and all of its Subsidiaries. “Eligible Individuals” means the individuals described in Section 6 who are eligible for Awards. “Employee Trust” means any trust established or maintained by the Company in connection with an employee benefit plan (including the Plan) under which current and former employees of the Company constitute the principal beneficiaries. applicable rulings and regulations thereunder. 1 “Fair Market Value” means, with respect to a Share, the fair market value thereof as of the relevant date of determination, as determined in accordance with a valuation methodology approved by the Committee. “Incentive Stock Option” means an Option that is intended to qualify for special federal income tax treatment pursuant to Sections 421 and 422 of the Code, as now constituted or subsequently amended, or pursuant to a successor provision of the Code, and which is so designated in the applicable Award Document. “Morgan Stanley” means Morgan Stanley, a Delaware corporation. “Option” or “Stock Option” means a right, granted to a Participant pursuant to Section 9, to purchase one Share. “Other Award” means any other form of award authorized under Section 11 of the Plan, including any such Other Award the receipt of which was elected pursuant to Section 12(a). “Participant” means an individual to whom an Award has been made. “Plan” means the Morgan Stanley 2007 Equity Incentive Compensation Plan, as amended from time to time in accordance with Section 15(e) below. “Restricted Stock” means Shares granted or sold to a Participant pursuant to Section 7. “SAR” means a right, granted to a Participant pursuant to Section 10, to receive upon exercise of such right, in cash or Shares (or a combination thereof) as authorized by the Committee, an amount equal to the increase in the Fair Market Value of one Share over a specified exercise price. “Section 162(m) Participant” means, for a given fiscal year of Morgan Stanley, any Participant designated by the Committee as a Participant whose compensation may be subject to the limit on deductible compensation imposed by Section 162(m) of the Code (or any successor provisions thereto). “Section 162(m) Performance Goals” means the performance formula that was approved by Morgan Stanley’s stockholders on March 22, 2001 or any other performance formula or performance goals approved by Morgan Stanley’s stockholders pursuant to Section 162(m) of the Code (or any successor provisions thereto). “Section 409A” means Section 409A of the Code (or any successor provisions thereto). “Shares” means shares of Stock. “Stock” means the common stock, par value $0.01 per share, of Morgan Stanley. “Stock Unit” means a right, granted to a Participant pursuant to Section 8, to receive one Share or an amount in cash equal to the Fair Market Value of one Share, as authorized by the Committee. 2   “Subsidiary” means (i) a corporation or other entity with respect to which Morgan Stanley, directly or indirectly, has the power, whether through the ownership of voting securities, by contract or otherwise, to elect at least a majority of the members of such corporation’s board of directors or analogous governing body, or (ii) any other corporation or other entity in which Morgan Stanley, directly or indirectly, has an equity or similar interest and which the Committee designates as a Subsidiary for purposes of the Plan. “Substitute Awards” means Awards granted upon assumption of, or in substitution for, outstanding awards previously granted by, or held by employees of, a company or other entity or business acquired (directly or indirectly) by Morgan Stanley or with which Morgan Stanley combines. 3.     Effective Date and Term of Plan. (a) Effective Date. The Plan shall become effective upon its adoption by the Board, subject to its approval by Morgan Stanley’s stockholders. Prior to such stockholder approval, the Committee may grant Awards conditioned on stockholder approval, but no Shares may be issued or delivered pursuant to any such Award until Morgan Stanley’s stockholders have approved the Plan. If such stockholder approval is not obtained at or before the first annual meeting of stockholders to occur after the adoption of the Plan by the Board, the Plan and any Awards made thereunder shall terminate ab initio and be of no further force and effect. (b) Term of Plan. No Awards may be made under the Plan after the date that is five years from the date of shareholder approval. 4.     Stock Subject to Plan. (a) Overall Plan Limit. The total number of Shares that may be delivered pursuant to Awards shall be 125,000,000 as calculated pursuant to Section 4(c). The number of Shares available for delivery under the Plan shall be adjusted as provided in Section 4(b). Shares delivered under the Plan may be authorized but unissued shares or treasury shares that Morgan Stanley acquires in the open market, in private transactions or otherwise. (b) Adjustments for Certain Transactions. In the event of a stock split, reverse stock split, stock dividend, recapitalization, reorganization, merger, consolidation, extraordinary dividend or distribution, split-up, spin-off, combination, reclassification or exchange of shares, warrants or rights offering to purchase Stock at a price substantially below Fair Market Value or other change in corporate structure or any other event that affects Morgan Stanley’s capitalization, the Committee shall equitably adjust (i) the number and kind of shares authorized for delivery under the Plan, including the maximum number of Shares available for Awards of Options or SARs as provided in Section 4(d) and the maximum number of Incentive Stock Options as provided in Section 4(e), and (ii) the number and kind of shares subject to any outstanding Award and the exercise or purchase price per share, if any, under any outstanding Award. In the discretion of the Committee, such an adjustment may take the form of a cash payment to a Participant. The Committee shall make all such adjustments, and its determination as to what adjustments shall be made, and the extent thereof, shall be final. Unless the Committee determines otherwise, such 3   adjusted Awards shall be subject to the same vesting schedule and restrictions to which the underlying Award is subject. (c) Calculation of Shares Available for Delivery. In calculating the number of Shares that remain available for delivery pursuant to Awards at any time, the following rules shall apply (subject to the limitation in Section 4(e)): 1. The number of Shares available for delivery shall be reduced by the number of Shares subject to an Award and, in the case of an Award that is not denominated in Shares, the number of Shares actually delivered upon payment or settlement of the Award. 2. The number of Shares tendered (by actual delivery or attestation) or withheld from an Award to pay the exercise price of the Award or to satisfy any tax withholding obligation or liability of a Participant shall be added back to the number of Shares available for delivery pursuant to Awards. 3. The number of Shares in respect of any portion of an Award that is canceled or that expires without having been paid or settled by the Company shall be added back to the number of Shares available for delivery pursuant to Awards to the extent such Shares were counted against the Shares available for delivery pursuant to clause (1). 4. If an Award is settled or paid by the Company in whole or in part through the delivery of consideration other than Shares, or by delivery of fewer than the full number of Shares that was counted against the Shares available for delivery pursuant to clause (1), there shall be added back to the number of Shares available for delivery pursuant to Awards the excess of the number of Shares that had been so counted over the number of Shares (if any) actually delivered upon payment or settlement of the Award. 5. Any Shares underlying Substitute Awards shall not be counted against the number of Shares available for delivery pursuant to Awards and shall not be subject to Section 4(d). (d) Individual Limit on Options and SARs. The maximum number of Shares that may be subject to Options or SARs granted to or elected by a Participant in any fiscal year shall be 2,000,000 Shares. The limitation imposed by this Section 4(d) shall not include Options or SARs granted to a Participant pursuant to Section 162(m) Performance Goals. (e) ISO Limit. The full number of Shares available for delivery under the Plan may be delivered pursuant to Incentive Stock Options, except that in calculating the number of Shares that remain available for Awards of Incentive Stock Options the rules set forth in Section 4(c) shall not apply to the extent not permitted by Section 422 of the Code. 5.     Administration. (a) Committee Authority Generally. The Committee shall administer the Plan and shall have full power and authority to make all determinations under the Plan, subject to the express provisions hereof, including without limitation: (i) to select Participants from among the Eligible Individuals; (ii) to make Awards; (iii) to determine the number of Shares subject to each Award or the cash amount payable in connection with an Award; (iv) to establish the terms and 4 conditions of each Award, including, without limitation, those related to vesting, cancellation, payment, exercisability, and the effect, if any, of certain events on a Participant’s Awards, such as the Participant’s termination of employment with the Company; (v) to specify and approve the provisions of the Award Documents delivered to Participants in connection with their Awards; (vi) to construe and interpret any Award Document delivered under the Plan; (vii) to prescribe, amend and rescind rules and procedures relating to the Plan; (viii) to make all determinations necessary or advisable in administering the Plan and Awards, including without limitation determinations as to whether (and if so as of what date) a Participant has commenced, or has experienced a termination of, employment; provided, however, that to the extent full or partial payment of any Award that constitutes a deferral of compensation subject to Section 409A is made upon or as a result of a Participant’s termination of employment, the Participant will be considered to have experienced a termination of employment if, and only if, the Participant has experienced a separation from service with the Participant’s employer for purposes of Section 409A; (ix) to vary the terms of Awards to take account of securities law and other legal or regulatory requirements of jurisdictions in which Participants work or reside or to procure favorable tax treatment for Participants; and (x) to formulate such procedures as it considers to be necessary or advisable for the administration of the Plan. (b) Delegation. To the extent not prohibited by applicable laws or rules of the New York Stock Exchange, the Committee may from time to time delegate some or all of its authority under the Plan to one or more Administrators consisting of one or more members of the Committee as a subcommittee or subcommittees thereof or of one or more members of the Board who are not members of the Committee or one or more officers of the Company (or of any combination of such persons). Any such delegation shall be subject to the restrictions and limits that the Committee specifies at the time of such delegation or thereafter. The Committee may at any time rescind all or part of the authority delegated to an Administrator or appoint a new Administrator. At all times, an Administrator appointed under this Section 5(b) shall serve in such capacity at the pleasure of the Committee. Any action undertaken by an Administrator in accordance with the Committee’s delegation of authority shall have the same force and effect as if undertaken directly by the Committee, and any reference in the Plan to the Committee shall, to the extent consistent with the terms and limitations of such delegation, be deemed to include a reference to an Administrator. (c) Authority to Construe and Interpret. The Committee shall have full power and authority, subject to the express provisions hereof, to construe and interpret the Plan. (d) Committee Discretion. All of the Committee’s determinations in carrying out, administering, construing and interpreting the Plan shall be made or taken in its sole discretion and shall be final, binding and conclusive for all purposes and upon all persons. In the event of any disagreement between the Committee and an Administrator, the Committee’s determination on such matter shall be final and binding on all interested persons, including any Administrator. The Committee’s determinations under the Plan need not be uniform and may be made by it selectively among persons who receive, or are eligible to receive, Awards under the Plan (whether or not such persons are similarly situated). Without limiting the generality of the foregoing, the Committee shall be entitled, among other things, to make non-uniform and selective determinations, and to enter into non-uniform and selective Award Documents, as to 5   the persons receiving Awards under the Plan, and the terms and provisions of Awards under the Plan. (e) No Liability. Subject to applicable law: (i) no member of the Committee or any Administrator shall be liable for anything whatsoever in connection with the exercise of authority under the Plan or the administration of the Plan except such person’s own willful misconduct; (ii) under no circumstances shall any member of the Committee or any Administrator be liable for any act or omission of any other member of the Committee or an Administrator; and (iii) in the performance of its functions with respect to the Plan, the Committee and an Administrator shall be entitled to rely upon information and advice furnished by the Company’s officers, the Company’s accountants, the Company’s counsel and any other party the Committee or the Administrator deems necessary, and no member of the Committee or any Administrator shall be liable for any action taken or not taken in good faith reliance upon any such advice. 6. Eligibility. Eligible Individuals shall include all officers, other employees (including prospective employees) and consultants of, and other persons who perform services for, the Company, non-employee directors of Subsidiaries and employees and consultants of joint ventures, partnerships or similar business organizations in which Morgan Stanley or a Subsidiary has an equity or similar interest. Any Award made to a prospective employee shall be conditioned upon, and effective not earlier than, such person’s becoming an employee. Members of the Board who are not Company employees will not be eligible to receive Awards under the Plan. An individual’s status as an Administrator will not affect his or her eligibility to receive Awards under the Plan. 7. Restricted Stock. An Award of Restricted Stock shall be subject to the terms and conditions established by the Committee in connection with the Award and specified in the applicable Award Document. Restricted Stock may, among other things, be subject to restrictions on transfer, vesting requirements or cancellation under specified circumstances. 8. Stock Units. An Award of Stock Units shall be subject to the terms and conditions established by the Committee in connection with the Award and specified in the applicable Award Document. Each Stock Unit awarded to a Participant shall correspond to one Share. Upon satisfaction of the terms and conditions of the Award, a Stock Unit will be payable, at the discretion of the Committee, in Stock or in cash equal to the Fair Market Value on the payment date of one Share. As a holder of Stock Units, a Participant shall have only the rights of a general unsecured creditor of Morgan Stanley. A Participant shall not be a stockholder with respect to the Shares underlying Stock Units unless and until the Stock Units convert to Shares. Stock Units may, among other 9.  Options. (a) Options Generally. An Award of Options shall be subject to the terms and specified in the applicable Award Document. The Committee shall establish (or shall authorize the method for establishing) the exercise price of all Options awarded under the Plan, except that the exercise 6   price of an Option shall not be less than 100% of the Fair Market Value of one Share on the Award Date. Notwithstanding the foregoing, the exercise price of an Option that is a Substitute Award may be less than the Fair Market Value per Share on the Award Date, provided that such substitution complies with applicable laws and regulations, including the listing requirements of the New York Stock Exchange and Section 409A or Section 424, as applicable, of the Code. Upon satisfaction of the conditions to exercisability of the Award, a Participant shall be entitled to exercise the Options included in the Award and to have delivered, upon Morgan Stanley’s receipt of payment of the exercise price and completion of any other conditions or procedures specified by Morgan Stanley, the number of Shares in respect of which the Options shall have been exercised. Options may be either nonqualified stock options or Incentive Stock Options. Options and the Shares acquired upon exercise of Options may, among other things, be subject to restrictions on transfer, vesting requirements or (b) Prohibition on Restoration Option Grants. Anything in the Plan to the contrary notwithstanding, the terms of an Option shall not provide that a new Option will be granted, automatically and without additional consideration in excess of the exercise price of the underlying Option, to a Participant upon exercise of the Option. (c) Prohibition on Repricing of Options and SARs. Anything in the Plan to the contrary notwithstanding, the Committee may not reprice any Option or SAR. “Reprice” means any action that constitutes a “repricing” under the rules of the (d) Payment of Exercise Price. Subject to the provisions of the applicable Award Document and to the extent authorized by rules and procedures of Morgan Stanley from time to time, the exercise price of the Option may be paid in cash, by actual delivery or attestation to ownership of freely transferable Shares already owned by the person exercising the Option, or by such other means as Morgan Stanley may authorize. (e) Maximum Term on Stock Options and SARs. No Option or SAR shall have an expiration date that is later than the tenth anniversary of the Award Date thereof. 10. SARs. An Award of SARs shall be subject to the terms and conditions established by the Committee in connection with the Award and specified in the applicable Award Document. The Committee shall establish (or shall authorize the method for establishing) the exercise price of all SARs awarded under the Plan, except that the exercise price of a SAR shall not be less than 100% of the Fair Market Value of one Share on the Award Date. Notwithstanding the foregoing, the exercise price of any SAR that is a Substitute Award may be less than the Fair Market Value of one Share on the Award Date, subject to the same conditions set forth in Section 9(a) for Options that are Substitute Awards. Upon satisfaction of the conditions to the payment of the Award, each SAR shall entitle a Participant to an amount, if any, equal to the Fair Market Value of one Share on the date of exercise over the SAR exercise price specified in the applicable Award Document. At the discretion of the Committee, payments to a Participant upon exercise of an SAR may be made in Shares, cash or a combination thereof. SARs and the Shares that may be acquired upon exercise of SARs may, among other 7   11.  Other Awards. The Committee shall have the authority to establish the terms and provisions of other forms of equity-based or equity-related Awards (such terms and provisions to be specified in the applicable Award Document) not described above that the Committee determines to be consistent with the purpose of the Plan and the interests of the Company, which Awards may provide for (i) cash or Stock payments based in whole or in part on the value or future value of Stock or on any amount that Morgan Stanley pays as dividends or otherwise distributes with respect to Stock, (ii) the acquisition or future acquisition of Stock, (iii) cash or Stock payments (including payment of dividend equivalents in cash or Stock) based on one or more criteria determined by the Committee unrelated to the value of Stock, or (iv) any combination of the foregoing. Awards pursuant to this Section 11 may, among other things, be made subject to restrictions on transfer, vesting requirements or cancellation under specified circumstances. 12.  General Terms and Provisions. (a) Awards in General. Awards may, in the discretion of the Committee, be made in substitution in whole or in part for cash or other compensation payable to an Eligible Individual. In accordance with rules and procedures authorized by the Committee, an Eligible Individual may elect one form of Award in lieu of any other form of Award, or may elect to receive an Award in lieu of all or part of any compensation that otherwise might have been paid to such Eligible Individual; provided, however, that any such election shall not require the Committee to make any Award to such Eligible Individual. Any such substitute or elective Awards shall have terms and conditions consistent with the provisions of the Plan applicable to such Award. Awards may be granted in tandem with, or independent of, other Awards. The grant, vesting or payment of an Award may, among other things, be conditioned on the attainment of performance objectives, including without limitation objectives based in whole or in part on net income, pre- tax income, return on equity, earnings per share, total shareholder return or book value per share. (b) Discretionary Awards. All grants of Awards and deliveries of Shares, cash or other property under the Plan shall constitute a special discretionary incentive payment to the Participant and shall not be required to be taken into account in computing the amount of salary, wages or other compensation of the Participant for the purpose of determining any contributions to or any benefits under any pension, retirement, profit-sharing, bonus, life insurance, severance or other benefit plan of the Company or other benefits from the Company or under any agreement with the Participant, unless Morgan Stanley specifically provides otherwise. (c) Dividends and Distributions. If Morgan Stanley pays any dividend or makes any distribution to holders of Stock, the Committee may in its discretion authorize payments (which may be in cash, Stock (including Restricted Stock) or Stock Units or a combination thereof) with respect to the Shares corresponding to an Award, or may authorize appropriate adjustments to outstanding Awards, to reflect such dividend or distribution. The Committee may make any such payments subject to vesting, deferral, restrictions on transfer or other conditions. Any determination by the Committee with respect to a Participant’s entitlement to receive any amounts related to dividends or distributions to holders of Stock, as well as the terms and conditions of such entitlement, if any, will be part of the terms and conditions of the Award, and will be included in the Award Document for such Award. 8   (d) Deferrals. In accordance with the procedures authorized by, and subject to the approval of, the Committee, Participants may be given the opportunity to defer the payment or settlement of an Award to one or more dates selected by the Participant. To the extent an Award constitutes a deferral of compensation subject to Section 409A, the Committee shall set forth in writing (which may be in electronic form), on or before the date the applicable deferral election is required to be irrevocable in order to meet the requirements of Section 409A, the conditions under which such election may be made. (e) Award Documentation and Award Terms. The terms and conditions of an Award shall be set forth in an Award Document authorized by the Committee. The Award Document shall include any vesting, exercisability, payment and other restrictions applicable to an Award (which may include, without limitation, the effects of termination of employment, cancellation of the Award under specified circumstances, restrictions on transfer or provision for mandatory resale to the Company). (f) Awards to Section 162(m) Participants. Except for Options and SARs the shares underlying which are counted against the individual limit set forth in Section 4(d), all Awards to Section 162(m) Participants shall be made pursuant to the attainment of Section 162(m) Performance Goals as certified by the Committee in accordance with the requirements of Section 162(m) of the Code. Without any further action by the Board or the Committee, this Section 12(f) shall cease to apply on the effective date of the repeal of Section 162(m) of the Code (and any successor provision thereto). 13.   Certain Restrictions. (a) Stockholder Rights. No Participant (or other persons having rights pursuant to an Award) shall have any of the rights of a stockholder of Morgan Stanley with respect to Shares subject to an Award until the delivery of the Shares, which shall be effected by entry of the Participant’s (or other person’s) name in the share register of Morgan Stanley or by such other procedure as may be authorized by Morgan Stanley. Except as otherwise provided in Section 4(b) or 12(c), no adjustments shall be made for dividends or distributions on, or other events relating to, Shares subject to an Award for which the record date is prior to the date such Shares are delivered. Notwithstanding the foregoing, the terms of an Employee Trust may authorize some or all Participants to give voting or tendering instructions to the trustee thereof in respect of Shares that are held in such Employee Trust and are subject to Awards. Except for the risk of cancellation and the restrictions on transfer that may apply to certain Shares (including restrictions relating to any dividends or other rights) or as otherwise set forth in the applicable Award Document, the Participant shall be the beneficial owner of any Shares delivered to the Participant in connection with an Award and, upon such delivery shall be entitled to all rights of ownership, including, without limitation, the right to vote the Shares and to receive cash dividends or other dividends (whether in Shares, other securities or other property) thereon. (b) Transferability. No Award granted under the Plan shall be transferable, whether voluntarily or involuntarily, other than by will or by the laws of descent and distribution; provided that, except with respect to Incentive Stock Options, the Committee may permit transfers on such terms and conditions as it shall determine. During the lifetime of a Participant   9 to whom Incentive Stock Options were awarded, such Incentive Stock Options shall be exercisable only by the Participant. 14. Representation; Compliance with Law. The Committee may condition the grant, exercise, settlement or retention of any Award on the Participant making any representations required in the applicable Award Document. Each Award shall also be conditioned upon the making of any filings and the receipt of any consents or authorizations required to comply with, or required to be obtained under, applicable law. 15.  Miscellaneous Provisions. (a) Satisfaction of Obligations. As a condition to the making or retention of any Award, the vesting, exercise or payment of any Award or the lapse of any restrictions pertaining thereto, Morgan Stanley may require a Participant to pay such sum to the Company as may be necessary to discharge the Company’s obligations with respect to any taxes, assessments or other governmental charges (including FICA and other social security or similar tax) imposed on property or income received by a Participant pursuant to the Award or to satisfy any obligation that the Participant owes to the Company. In accordance with rules and procedures authorized by Morgan Stanley, (i) such payment may be in the form of cash or other property, including the tender of previously owned Shares, and (ii) in satisfaction of such taxes, assessments or other governmental charges or, exclusively in the case of an Award that does not constitute a deferral of compensation subject to Section 409A, of other obligations that a Participant owes to the Company, Morgan Stanley may make available for delivery a lesser number of Shares in payment or settlement of an Award, may withhold from any payment or distribution of an Award or may enter into any other suitable arrangements to satisfy such withholding or other obligation. To the extent an Award constitutes a deferral of compensation subject to Section 409A, the Company may not offset from the payment of such Award amounts that a Participant owes to the Company with respect to any such other obligation except to the extent such offset is not prohibited by Section 409A and would not cause a Participant to recognize income for United States federal income tax purposes prior to the time of payment of the Award or to incur interest or additional tax under Section 409A. (b) No Right to Continued Employment. Neither the Plan nor any Award shall give rise to any right on the part of any Participant to continue in the employ of the Company. (c) Headings. The headings of sections herein are included solely for convenience of reference and shall not affect the meaning of any of the provisions of the Plan. (d) Governing Law. The Plan and all rights hereunder shall be construed in accordance with and governed by the laws of the State of New York, without regard to any conflicts or choice of law, rule or principle that might otherwise refer the interpretation of the award to the substantive law of another jurisdiction. (e) Amendments and Termination. The Board or Committee may modify, amend, suspend or terminate the Plan in whole or in part at any time and may modify or amend the terms and conditions of any outstanding Award (including by amending or supplementing the relevant Award Document at any time); provided, however, that no such modification, amendment, 10   suspension or termination shall, without a Participant’s consent, materially adversely affect that Participant’s rights with respect to any Award previously made; and provided, further, that the Committee shall have the right at any time, without a Participant’s consent and whether or not the Participant’s rights are materially adversely affected thereby, to amend or modify the Plan or any Award under the Plan in any manner that the Committee considers necessary or advisable to comply with any law, regulation, ruling, judicial decision, accounting standards, regulatory guidance or other legal requirement. Notwithstanding the preceding sentence, neither the Board nor the Committee may accelerate the payment or settlement of any Award, including, without limitation, any Award subject to a prior deferral election, that constitutes a deferral of compensation for purposes of Section 409A except to the extent such acceleration would not result in the Participant incurring interest or additional tax under Section 409A. No amendment to the Plan may render any Board member who is not a Company employee eligible to receive an Award at any time while such member is serving on the Board. To the extent required by applicable law or the rules of the New York Stock Exchange, amendments to the Plan shall not be effective unless they are approved by Morgan Stanley’s stockholders.       11    

EXHIBIT 10.3 RESIGNATION To the Board of Directors of Accelerated Acquisitions XXII, Inc. a Delaware corporation The undersigned, being an officer and director of the above-named corporation, does hereby resign from President, Secretary, Treasurer, and as a Director of the Company. Said resignation is contingent and expressly conditioned upon (a) the sale of 23,350,000 shares of the Company’s common shares to NorthShore Variables LLC and (b) the appointment of successor directors and officers of the corporation. Said resignation shall be effective on the date of the Closing of the transaction contemplated by the Subscription Agreements between the Company and NorthShore Variables LLC. Dated as of April 19, 2013 /S/ Timothy Neher Timothy Neher

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-Q QUARTERLY SCHEDULE OF PORTFOLIO HOLDINGS OF REGISTERED MANAGEMENT INVESTMENT COMPANY Investment Company Act file number: (811- 03897 ) Exact name of registrant as specified in charter: Putnam U.S. Government Income Trust Address of principal executive offices: One Post Office Square, Boston, Massachusetts 02109 Name and address of agent for service: Beth S. Mazor, Vice President One Post Office Square Boston, Massachusetts 02109 Copy to: John W. Gerstmayr, Esq. Ropes & Gray LLP One International Place Boston, Massachusetts 02110 Registrant’s telephone number, including area code: (617) 292-1000 Date of fiscal year end: September 30, 2005 Date of reporting period: December 31, 2005 Item 1. Schedule of Investments: Putnam U.S. Government Income Trust The fund's portfolio 12/31/05 (Unaudited) U.S. GOVERNMENT AND AGENCY MORTGAGE OBLIGATIONS (85.9%)(a) Principal amount Value U.S. Government Guaranteed Mortgage Obligations (67.4%) Government National Mortgage Association Adjustable Rate Mortgages 4 1/2s, August 20, 2034 $28,911,487 $28,647,742 Government National Mortgage Association Graduated Payment Mortgages 13 3/4s, November 20, 2014 7,095 8,707 13 1/2s, April 15, 2011 23,342 27,031 13 1/4s, December 20, 2014 17,966 21,808 12 3/4s, with due dates from November 15, 2013 to December 20, 2014 45,608 54,382 12 1/2s, June 15, 2010 10,547 11,826 12 1/4s, with due dates from September 15, 2013 to March 15, 2014 93,143 109,507 11 1/4s, with due dates from September 15, 2015 to January 15, 2016 152,327 177,370 10s, with due dates from November 15, 2009 to November 15, 2009 42,643 45,601 9 1/4s, with due dates from April 15, 2016 to May 15, 2016 28,276 31,020 Government National Mortgage Association Pass-Through Certificates 8 1/2s, with due dates from February 15, 2006 to December 15, 2019 112,736 114,408 8s, with due dates from May 15, 2024 to August 15, 2032 29,189,336 31,275,641 8s, with due dates from January 15, 2008 to November 15, 2009 2,283,806 2,389,485 7 1/2s, with due dates from October 15, 2021 to November 15, 2032 37,336,241 39,570,509 7 1/2s, with due dates from March 15, 2017 to May 15, 2017 41,222 43,401 7s, with due dates from March 15, 2022 to May 15, 2032 43,559,836 45,993,394 7s, with due dates from October 15, 2007 to August 15, 2012 2,306,579 2,372,344 6 1/2s, with due dates from October 15, 2023 to March 15, 2035 15,319,461 16,053,262 6s, with due dates from November 15, 2023 to October 15, 2033 1,647,963 1,689,105 5 1/2s, with due dates from December 15, 2032 to October 15, 2035 42,392,070 42,723,258 5 1/2s, TBA, January 1, 2036 200,000,000 200,625,000 5 1/2s, TBA, January 1, 2036 564,000,000 567,348,750 979,333,551 U.S. Government Agency Mortgage Obligations (18.5%) Federal Home Loan Mortgage Corporation Pass-Through Certificates 5 1/2s, with due dates from August 1, 2013 to May 1, 2020 809,880 815,372 5s, with due dates from May 1, 2034 to May 1, 2034 801,766 777,869 Federal National Mortgage Association Pass-Through Certificates 7s, with due dates from September 1, 2028 to March 1, 2029 244,881 256,188 6 1/2s, with due dates from March 1, 2024 to September 1, 2032 182,827 188,020 6 1/2s, March 1, 2016 43,850 44,840 6s, November 1, 2017 238,701 243,932 6s, TBA, January 1, 2036 40,100,000 40,460,274 5 1/2s, with due dates from January 1, 2034 to January 1, 2036 68,321,424 67,670,945 5 1/2s, with due dates from January 1, 2009 to June 1, 2020 2,945,565 2,965,476 5 1/2s, TBA, January 1, 2036 129,200,000 127,928,181 5s, August 1, 2033 2,140 2,081 5s, TBA, January 1, 2035 20,050,000 19,420,306 5s, TBA, January 1, 2021 2,800,000 2,768,937 4 1/2s, with due dates from April 1, 2020 to June 1, 2034 2,586,563 2,473,097 4 1/2s, TBA, January 1, 2021 2,775,000 2,698,688 4s, September 1, 2020 98,672 94,104 268,808,310 Total U.S. government and agency mortgage obligations (cost $1,234,859,159) $1,248,141,861 COLLATERALIZED MORTGAGE OBLIGATIONS (26.7%)(a) Principal amount Value Fannie Mae IFB Ser. 03-130, Class SJ, 10.485s, 2034 $539,554 $578,294 IFB Ser. 05-114, Class PS, 9.041s, 2035 775,000 778,391 IFB Ser. 05-115, Class NQ, 8.813s, 2036 802,000 802,533 IFB Ser. 05-74, Class CP, 8.695s, 2035 2,805,615 2,970,305 IFB Ser. 05-76, Class SA, 8.695s, 2034 1,983,231 2,064,345 IFB Ser. 05-106, Class US, 8.511s, 2035 3,417,075 3,628,250 IFB Ser. 05-99, Class SA, 8.511s, 2035 1,643,121 1,711,897 IFB Ser. 05-104, Class SD, 8.511s, 2033 2,183,713 2,233,017 IFB Ser. 05-74, Class DM, 8.328s, 2035 3,205,361 3,337,422 Ser. 00-42, Class B2, 8s, 2030 82,288 88,764 Ser. 00-17, Class PA, 8s, 2030 386,766 416,817 Ser. 00-18, Class PA, 8s, 2030 357,680 385,364 Ser. 00-19, Class PA, 8s, 2030 369,077 397,607 Ser. 00-20, Class PA, 8s, 2030 209,406 225,844 Ser. 00-21, Class PA, 8s, 2030 623,539 672,237 Ser. 00-22, Class PA, 8s, 2030 465,525 501,510 Ser. 97-37, Class PB, 8s, 2027 1,089,155 1,176,941 Ser. 97-13, Class TA, 8s, 2027 156,100 168,744 Ser. 97-21, Class PA, 8s, 2027 633,725 684,233 Ser. 97-22, Class PA, 8s, 2027 1,221,585 1,319,679 Ser. 97-16, Class PE, 8s, 2027 Ser. 97-25, Class PB, 8s, 2027 Ser. 95-12, Class PD, 8s, 2025 Ser. 95-5, Class A, 8s, 2025 Ser. 95-5, Class TA, 8s, 2025 Ser. 95-6, Class A, 8s, 2025 Ser. 95-7, Class A, 8s, 2025 Ser. 94-106, Class PA, 8s, 2024 Ser. 94-95, Class A, 8s, 2024 IFB Ser. 05-74, Class CS, 7.978s, 2035 IFB Ser. 05-114, Class SP, 7.7s, 2036 Ser. 02-26, Class A2, 7 1/2s, 2048 Ser. 05-W3, Class 1A, 7 1/2s, 2045 Ser. 04-W8, Class 3A, 7 1/2s, 2044 Ser. 04-W11, Class 1A4, 7 1/2s, 2044 Ser. 04-W2, Class 5A, 7 1/2s, 2044 Ser. 04-T3, Class 1A4, 7 1/2s, 2044 Ser. 04-W9, Class 2A3, 7 1/2s, 2044 Ser. 04-T2, Class 1A4, 7 1/2s, 2043 Ser. 03-W4, Class 4A, 7 1/2s, 2042 Ser. 02-T18, Class A4, 7 1/2s, 2042 Ser. 03-W3, Class 1A3, 7 1/2s, 2042 Ser. 02-T16, Class A3, 7 1/2s, 2042 Ser. 03-W2, Class 1A3, 7 1/2s, 2042 Ser. 02-W6, Class 2A, 7 1/2s, 2042 Ser. 02-W4, Class A5, 7 1/2s, 2042 Ser. 02-W1, Class 2A, 7 1/2s, 2042 Ser. 02-14, Class A2, 7 1/2s, 2042 Ser. 01-T10, Class A2, 7 1/2s, 2041 Ser. 02-T4, Class A3, 7 1/2s, 2041 Ser. 01-T12, Class A2, 7 1/2s, 2041 Ser. 01-T8, Class A1, 7 1/2s, 2041 Ser. 01-T7, Class A1, 7 1/2s, 2041 Ser. 01-T3, Class A1, 7 1/2s, 2040 Ser. 01-T1, Class A1, 7 1/2s, 2040 Ser. 99-T2, Class A1, 7 1/2s, 2039 Ser. 03-W10, Class 1A1, 7 1/2s, 2032 Ser. 02-T1, Class A3, 7 1/2s, 2031 Ser. 00-T6, Class A1, 7 1/2s, 2030 Ser. 02-W7, Class A5, 7 1/2s, 2029 Ser. 01-T4, Class A1, 7 1/2s, 2028 Ser. 02-W3, Class A5, 7 1/2s, 2028 Ser. 02-26, Class A1, 7s, 2048 Ser. 04-W12, Class 1A3, 7s, 2044 Ser. 04-T3, Class 1A3, 7s, 2044 Ser. 04-T2, Class 1A3, 7s, 2043 Ser. 03-W8, Class 2A, 7s, 2042 Ser. 03-W3, Class 1A2, 7s, 2042 Ser. 02-T16, Class A2, 7s, 2042 Ser. 02-T19, Class A2, 7s, 2042 Ser. 01-T10, Class A1, 7s, 2041 Ser. 02-T4, Class A2, 7s, 2041 Ser. 04-W1, Class 2A2, 7s, 2033 IFB Ser. 05-95, Class CP, 6.878s, 2035 IFB Ser. 05-83, Class QP, 6.009s, 2034 IFB Ser. 05-66, Class PS, 5.928s, 2035 IFB Ser. 05-93, Class AS, 5.928s, 2034 IFB Ser. 05-57, Class MN, 5.732s, 2035 Ser. 364, Class 10, IO (Interest only), 5 1/2s, 2035 Ser. 350, Class 2, IO, 5 1/2s, 2034 Ser. 329, Class 2, IO, 5 1/2s, 2033 Ser. 03-45, Class PI, IO, 5 1/2s, 2029 IFB Ser. 03-66, Class SA, IO, 3.271s, 2033 IFB Ser. 03-48, Class S, IO, 3.171s, 2033 IFB Ser. 05-113, Class DI, IO, 2.87s, 2036 IFB Ser. 04-51, Class S0, IO, 2.671s, 2034 IFB Ser. 05-65, Class KI, IO, 2.621s, 2035 IFB Ser. 05-72, Class WS, IO, 2.371s, 2035 IFB Ser. 05-82, Class SW, IO, 2.351s, 2035 IFB Ser. 05-82, Class SY, IO, 2.351s, 2035 IFB Ser. 05-45, Class EW, IO, 2.341s, 2035 IFB Ser. 05-47, Class SW, IO, 2.341s, 2035 IFB Ser. 05-105, Class S, IO, 2.321s, 2035 IFB Ser. 05-95, Class CI, IO, 2.321s, 2035 IFB Ser. 05-84, Class SG, IO, 2.321s, 2035 IFB Ser. 05-87, Class SG, IO, 2.321s, 2035 IFB Ser. 05-89, Class S, IO, 2.321s, 2035 IFB Ser. 05-69, Class AS, IO, 2.321s, 2035 IFB Ser. 05-104, Class NI, IO, 2.321s, 2035 IFB Ser. 04-92, Class S, IO, 2.321s, 2034 IFB Ser. 05-83, Class QI, IO, 2.311s, 2035 IFB Ser. 05-92, Class SC, IO, 2.301s, 2035 IFB Ser. 05-83, Class SL, IO, 2.291s, 2035 IFB Ser. 05-95, Class OI, IO, 2.211s, 2035 IFB Ser. 03-124, Class ST, IO, 2.121s, 2034 IFB Ser. 03-112, Class SA, IO, 2.121s, 2028 IFB Ser. 05-67, Class BS, IO, 1.771s, 2035 IFB Ser. 05-73, Class ST, IO, 1.751s, 2035 IFB Ser. 05-74, Class SE, IO, 1.721s, 2035 IFB Ser. 05-82, Class SI, IO, 1.721s, 2035 IFB Ser. 05-74, Class NI, IO, 1.701s, 2035 IFB Ser. 05-87, Class SE, IO, 1.671s, 2035 IFB Ser. 04-54, Class SW, IO, 1.621s, 2033 Ser. 05-113, Class DO, PO (Principal only), zero %, 2036 Ser. 361, Class 1, PO, zero %, 2035 Ser. 342, Class 1, PO, zero %, 2033 Ser. 02-82, Class TO, PO, zero %, 2032 Ser. 05-38, PO, zero %, 2031 FRB Ser. 05-79, Class FE, zero %, 2035 FRB Ser. 05-45, Class FG, zero %, 2035 FRB Ser. 05-81, Class DF, zero %, 2033 Federal Home Loan Mortgage Corp. Structured Pass-Through Securities Ser. T-59, Class 1A3, 7 1/2s, 2043 Ser. T-58, Class 4A, 7 1/2s, 2043 Ser. T-42, Class A5, 7 1/2s, 2042 Ser. T-41, Class 3A, 7 1/2s, 2032 Ser. T-60, Class 1A2, 7s, 2044 Ser. T-59, Class 1A2, 7s, 2043 Ser. T-55, Class 1A2, 7s, 2043 Freddie Mac IFB Ser. 2963, Class SV, 11.122s, 2034 IFB Ser. 3081, Class DC, 9.506s, 2035 IFB Ser. 3012, Class GP, 5.89s, 2035 IFB Ser. 2979, Class AS, 8.252s, 2034 IFB Ser. 3051, Class PS, 8.142s, 2035 IFB Ser. 3072, Class SA, 8.106s, 2035 IFB Ser. 2996, Class SA, 7.784s, 2035 IFB Ser. 3072, Class SM, 7.776s, 2035 IFB Ser. 3072, Class SB, 7.629s, 2035 Ser. 2229, Class PD, 7 1/2s, 2030 Ser. 2224, Class PD, 7 1/2s, 2030 Ser. 2217, Class PD, 7 1/2s, 2030 Ser. 2187, Class PH, 7 1/2s, 2029 Ser. 1989, Class C, 7 1/2s, 2027 Ser. 1990, Class D, 7 1/2s, 2027 Ser. 1969, Class PF, 7 1/2s, 2027 Ser. 1975, Class E, 7 1/2s, 2027 Ser. 1943, Class M, 7 1/2s, 2027 Ser. 1932, Class E, 7 1/2s, 2027 Ser. 1938, Class E, 7 1/2s, 2027 Ser. 1941, Class E, 7 1/2s, 2027 Ser. 1924, Class H, 7 1/2s, 2027 Ser. 1928, Class D, 7 1/2s, 2027 Ser. 1915, Class C, 7 1/2s, 2026 Ser. 1923, Class D, 7 1/2s, 2026 Ser. 1904, Class D, 7 1/2s, 2026 Ser. 1905, Class H, 7 1/2s, 2026 Ser. 1890, Class H, 7 1/2s, 2026 Ser. 1895, Class C, 7 1/2s, 2026 Ser. 2256, Class UA, 7s, 2030 Ser. 2208, Class PG, 7s, 2030 Ser. 2211, Class PG, 7s, 2030 Ser. 2198, Class PH, 7s, 2029 Ser. 2054, Class H, 7s, 2028 Ser. 2031, Class PG, 7s, 2028 Ser. 2020, Class E, 7s, 2028 Ser. 1998, Class PL, 7s, 2027 Ser. 1999, Class PG, 7s, 2027 Ser. 2004, Class BA, 7s, 2027 Ser. 2005, Class C, 7s, 2027 Ser. 2005, Class CE, 7s, 2027 Ser. 2006, Class H, 7s, 2027 Ser. 2006, Class T, 7s, 2027 Ser. 1987, Class AP, 7s, 2027 Ser. 1987, Class PT, 7s, 2027 Ser. 1978, Class PG, 7s, 2027 Ser. 1973, Class PJ, 7s, 2027 Ser. 1725, Class D, 7s, 2024 Ser. 2008, Class G, 7s, 2023 Ser. 1750, Class C, 7s, 2023 Ser. 1530, Class I, 7s, 2023 IFB Ser. 3012, Class UP, 6.15s, 2035 IFB Ser. 3065, Class DC, 6.752s, 2035 IFB Ser. 3050, Class SA, 5.952s, 2034 IFB Ser. 3031, Class BS, 5.802s, 2035 IFB Ser. 2594, Class SE, IO, 2.681s, 2030 IFB Ser. 2828, Class TI, IO, 2.681s, 2030 IFB Ser. 3033, Class SF, IO, 2.431s, 2035 IFB Ser. 3028, Class ES, IO, 2.381s, 2035 IFB Ser. 3045, Class DI, IO, 2.361s, 2035 IFB Ser. 2981, Class AS, IO, 2.351s, 2035 IFB Ser. 2981, Class BS, IO, 2.351s, 2035 IFB Ser. 2981, Class CS, IO, 2.351s, 2035 IFB Ser. 3034, Class SE, IO, 2.331s, 2035 IFB Ser. 3054, Class CS, IO, 2.331s, 2035 IFB Ser. 3066, Class SI, IO, 2.331s, 2035 IFB Ser. 3031, Class BI, IO, 2.321s, 2035 1,885,261 135,362 IFB Ser. 3067, Class SI, IO, 2.281s, 2035 7,328,285 595,790 IFB Ser. 3065, Class DI, IO, 2.251s, 2035 1,442,090 107,580 IFB Ser. 3012, Class UI, IO, 2.051s, 2035 3,707,060 201,664 IFB Ser. 3016, Class SP, IO, 1.741s, 2035 1,918,732 81,162 IFB Ser. 2937, Class SY, IO, 1.731s, 2035 2,016,583 72,496 IFB Ser. 3012, Class IG, IO, 1.711s, 2035 13,580,067 619,251 IFB Ser. 2957, Class SW, IO, 1.631s, 2035 11,357,044 432,987 IFB Ser. 2815, Class S, IO, 1.631s, 2032 4,596,218 159,489 Ser. 3045, Class DO, PO, zero %, 2035 92,947 73,391 Ser. 231, PO, zero %, 2035 23,154,652 17,479,461 Ser. 228, PO, zero %, 2035 4,771,467 3,760,151 FRB Ser. 3024, Class CW, zero %, 2035 383,683 380,852 FRB Ser. 3022, Class TC, zero %, 2035 444,130 492,429 FRB Ser. 2986, Class XT, zero %, 2035 253,150 268,102 FRB Ser. 2958, Class FL, zero %, 2035 1,208,734 1,150,957 FRB Ser. 3046, Class WF, zero %, 2035 637,951 623,946 FRB Ser. 3054, Class XF, zero %, 2034 265,245 267,367 FRB Ser. 3046, Class UF, zero %, 2033 1,129,088 1,116,976 FRN Ser. 3030, Class CF, zero %, 2035 1,004,256 1,077,848 Government National Mortgage Association IFB Ser. 05-68, Class DP, 6.458s, 2035 7,458,891 7,240,345 IFB Ser. 05-84, Class SL, 6.267s, 2035 4,927,393 4,650,227 IFB Ser. 05-66, Class SP, 6.267s, 2035 2,293,835 2,169,050 IFB Ser. 05-84, Class SB, 6.075s, 2035 5,003,858 4,729,428 IFB Ser. 05-68, Class SP, 5.99s, 2035 27,006,000 24,956,245 IFB Ser. 05-7, Class NP, 4.92s, 2033 789,865 755,032 IFB Ser. 05-84, Class AS, IO, 2.43s, 2035 13,219,036 747,702 IFB Ser. 05-65, Class SI, IO, 1.98s, 2035 19,188,700 890,356 IFB Ser. 05-68, Class SI, IO, 1.93s, 2035 32,370,820 1,699,468 IFB Ser. 05-51, Class SJ, IO, 1.83s, 2035 9,749,030 493,301 IFB Ser. 05-68, Class S, IO, 1.83s, 2035 19,336,609 920,423 IFB Ser. 05-60, Class SJ, IO, 1.41s, 2034 15,613,382 580,818 Total collateralized mortgage obligations (cost $395,869,712) $387,394,957 PURCHASED OPTIONS OUTSTANDING (%) (a) Expiration Contract amount date/strike price Value Option on an interest rate swap with Citibank for the right to pay a fixed rate of 4.885% versus the three month LIBOR maturing on January 11, 2016. 21,224,000 Jan-06/4.89 $110,364 Option on an interest rate swap with Citibank for the right to pay a fixed rate of 4.885% versus the three month LIBOR maturing on January 11, 2016. 21,224,000 Jan-06/4.89 48,815 Total purchased options (cost $564,558) $159,179 SHORT-TERM INVESTMENTS (50.8%)(a) Principal amount Value Interest in $552,000,000 joint tri-party repurchase agreement dated December 30, 2005, with UBS Securities LLC MTG due January 3, 2006, with respect to various U.S. Government obligations maturity value of $93,433,930 for an effective yield of 4.33% (collateralized by Freddie Mac and Fannie Mae with yields ranging from 3.5% to 10.5% and due dates ranging from March 1, 2008 to December 1, 2035, valued at $563,044,303) $93,389,000 $93,389,000 Interest in $455,000,000 joint tri-party repurchase agreement dated December 30, 2005, with Bank of America SEC, LLC due January 3, 2006, with respect to various U.S. Government obligations maturity value of $45,532,694 for an effective yield of 4.29% (collateralized by Fannie Mae with a yield of 5.0% and a due date of April 1, 2035, valued at $464,100,001) 45,511,000 45,511,000 U.S. Treasury Bills zero %, January 26, 2006 (SEG) 1,305,000 1,301,833 Federal Home Loan Banks, for an effective yield of 4.21%, January 23, 2006 267,000,000 266,316,331 Federal Home Loan Banks, for an effective yield of 4.20%, January 23, 2006 90,665,000 90,433,401 Federal Home Loan Banks, for an effective yield of 4.20%, January 13, 2006 146,960,000 146,754,979 Federal Home Loan Banks, for an effective yield of 4.19%, January 11, 2006 94,271,000 94,161,541 Total short-term investments (cost $737,868,085) $737,868,085 TOTAL INVESTMENTS Total investments (cost $2,369,161,514) (b) $2,373,564,082 FUTURES CONTRACTS OUTSTANDING at 12/31/05 (Unaudited) Unrealized Number of Expiration appreciation/ contracts Value date (depreciation) Euro 90 day (Short) 1,581 $376,475,625 Mar-07 $16,958 Euro 90 day (Long) 1,581 376,100,138 Jun-06 (72,783) U.S. Treasury Note 5 yr (Short) 2,577 274,047,844 Mar-06 233,545 U.S. Treasury Note 2 yr (Short) 462 94,796,625 Mar-06 121,330 U.S. Treasury Bond 20 yr (Long) 539 61,547,063 Mar-06 413,542 U.S. Treasury Note 10 yr (Long) 129 14,113,406 Mar-06 54,227 Total $766,819 WRITTEN OPTIONS

Exhibit 10.1(e)   December 2, 2002   Mr. Chris Hickok, CCIM United Properties 3500 west 80th Street Minneapolis, MN 55431   Re:          Renewal Proposal:   LANDLORD:   St Paul Properties       TENANT:   Sauer-Danfoss (US) Company       BUILDING:   3500 Annapolis Lane North Plymouth, Minnesota       USE:   Office/ Warehouse       TERM:   Five (5) Years – with two termination options as outlined in this proposal.       PREMISES:   22,719 square feet of office space 51,260 square feet of warehouse space 73, 979 total square footage       COMMENCEMENT DATE:   March 1, 2003       NET RENTAL RATE:   Months 1-12: $6.44 per square foot(current rate) Months 13-36 $6.57 per square foot Months 37-60 $6.75 per square foot       OPERATING EXPENSES:   The Tenant will pay its proportionate share of operating expenses, including common area maintenance, insurance, management fees and real estate taxes. The 2003 estimate of these costs is $3.51 per square, down from $3.60 psf in 2002.       UTILITIES:   The Premises is separately metered and billed directly to the Tenant.     TERMINATION OPTION:   The lease may be terminated between months 36 and 44 of the lease term by providing 6 months advance written notice and payment of 6 months gross rent The lease may be terminated between months 45 and 50 by providing 6 months notice and payment of 3 months gross rent.       PARKING:   The landlord will at its cost add additional parking during the first two years of the lease term. The additional parking is contingent on the city approval if this added parking. The general area for this will be the South East corner of the existing lot.       CONTINGENCY:   This offer is non-binding and contingent upon a mutually executed renewal agreement between Landlord and Tenant.   Nothing contained herein shall be binding upon either party until such documents are fully executed by both parties. The terms of this proposal will remain in effect until December 6th, 2002.     Regards,     David Gawthrop Mobile Electronics Controller 763-509-2018     AMENDMENT NO. 1 TO LEASE   THIS AMENDMENT NO. 1 TO LEASE (“Amendment”) made as of the 9th day of December, 2002, by and between ST. PAUL PROPERTIES, INC., a Delaware corporation (“Landlord”) and SAUER-DANFOSS US COMPANY, a Delaware corporation (“Tenant”).   WITNESSETH:   WHEREAS, Landlord and Sauer-Sundstrand Company (“Sauer”) were the parties to a certain Lease Agreement dated September 17, 1997 (the “Lease”), for premises described therein (the “Premises”); and   WHEREAS, Tenant is the successor by merger to Sauer; and   WHEREAS, Landlord and Tenant wish to amend the Lease to reflect certain additional agreements between them.   NOW, THEREFORE, in consideration of the Premises and for good and valuable parties agree as set forth below.   1.             Defined Terms. Unless otherwise indicated, capitalized terms shall be defined in the manner set forth in the Lease.   2.             Extension of Term. The Term of the Lease is hereby extended for a period of sixty (60) months commencing March 1, 2003 (the “Extension Commencement Date”) and ending on February 29, 2008 (such period the “Extension Term”).   3.             Base Rent. During the Extension Term, Tenant shall pay base rent for the Premises in the amount of:   (a)            for the period beginning on the Extension Commencement Date and ending on the last day of the twelfth calendar month of the Extension Term, Four Hundred Seventy Six Thousand Four Hundred Twenty Four and 76/100ths Dollars ($476,424.76) per annum, ($39,702.06 per month); and   (b)            for the period beginning on the first day of the thirteenth full calendar month of the Extension Term and ending on the last day of the Extension Term, Five Hundred Five Thousand Two Hundred Seventy Six and 57/100ths Dollars ($505,276.57) per annum ($42,106.38 per month,   without deduction or setoff therefrom, payable at the time and in the manner set forth in the Lease for the payment of base rent.   4.             Right of Termination. Tenant shall have two options to terminate the Lease as provided in this Paragraph 4. The first option shall allow Tenant to terminate the Lease effective as of the last day of the thirty-sixth full calendar month of the Extension Term (the “First Option   1   Termination Date”) by giving written notice thereof (the “First Option Termination Notice”) to Landlord not later than the last day of the twenty-seventh full calendar month of the Extension Term; provided however, it shall be a condition precedent to the exercise of such option that, simultaneously with the delivery of the First Option Termination Notice, Tenant delivers to Landlord a termination fee in the amount of $410,558.36 by wire transfer or by cashier’s check payable to Landlord’s order, which fee represents the sum of (a) six (6) months base rent and Operating Costs; plus (b) unamortized leasing commissions paid by Landlord in connection with extension of the term contemplated by this Amendment. The second option shall allow Tenant to terminate the Lease effective as of the last day of the fiftieth full calendar month of the Extension Term (the “Second Option Termination Date”) by giving written notice thereof (the “Second Option Termination Notice”) to Landlord not later than the last day of the forty-fourth full calendar month of the Extension Term; provided however, it shall be a condition precedent to the exercise of such option that, simultaneously with the delivery of the Second Option Termination Notice, Tenant delivers to Landlord a termination fee in the amount of $203,621.65 by wire transfer or by cashier’s check payable to Landlord’s order, which fee represents the sum of (x) three (3) months base rent and Operating Costs; plus (y) unamortized leasing commissions paid by Landlord in connection with extension of the term contemplated by this Amendment. In addition to the foregoing, the following shall be conditions precedent to the exercise of either termination option granted by this Paragraph: (r) Tenant shall not be in default under any of the terms and conditions of the Lease as of the date of the First Option Termination Notice or the Second Option Termination Notice or as of the First Option Termination Date or the Second Option Termination Date; and (s) in each of the First Option Termination Notice or the Second Option Termination Notice, as the case may be, Tenant shall include a representation that the reason for termination of the Lease is Tenant’s requirement for premises in excess of 74,000 contiguous rentable square feet in which to conduct its business. If Tenant satisfies all of the foregoing conditions, base rent, Operating Costs and other expenses due and payable by Tenant under the Lease shall be paid through and apportioned as of the First Option Termination Date or the Second Option Termination Date, as applicable, and neither Landlord nor Tenant shall have any rights, estates, liabilities or obligations accruing under the Lease after the First Option Termination Date or the Second Option Termination Date, as applicable, except such rights and obligations which, by the terms of the Lease, expressly survive the expiration or termination of the Lease. The right to terminate granted herein shall be personal to Tenant and shall not accrue to any assignee, sublessee or successor to the interest of Tenant under the Lease.   5.             Parking.    At any time between the Extension Term Commencement Date and the last day of the thirty-sixth full calendar month of the Extension Term, by written request to Landlord, Tenant shall have the right to request that Landlord provide not more than twenty-five additional surface parking spaces for use by Tenant, Tenant’s employees and invitees, which surface parking shall be in the area shown on Exhibit A attached to this Amendment and made a part hereof (the “Surface Parking”). Upon such request, and, at all times subject to consent to the construction of the Surface Parking by the City of Plymouth, Landlord, at Landlord’s sole cost and expense, will construct the Surface Parking; provided however that (a) Landlord shall have the sole right to seek the consent of the City of Plymouth to construct the Surface Parking; and (b) notwithstanding when the consent of the City of Plymouth is received, Landlord shall be obligated to commence construction of the Surface Parking in any year only if such construction can be commenced and completed from the period from April 15 to October 15 of the year in which the construction is to be performed. Notwithstanding anything in this Paragraph 5 to the   2   contrary, Tenant shall not have the right to request that Landlord construct the Surface Parking if Tenant is then in default under the Lease.   6.             Miscellaneous.   (a)           On the Extension Term Commencement Date, Tenant shall take the Premises in their then AS-IS, WHERE-IS AND WITH ALL FAULTS CONDITION.   (b)           The extension of the term contemplated by this Amendment constitutes the renewal of lease described in Paragraph 29, and Tenant agrees that it has no further rights to extend the Lease or renew the term.   (c)           The parties agree that, except for United Properties, LLC, neither party has been represented by any broker, agent or other person in connection with this transaction contemplated by this Amendment and each party agrees to defend, indemnify and hold the other party harmless from and against any claims by any other broker, agent or other person claiming a commission or other form of compensation by virtue of having dealt with either party with regard to the transaction contemplated by this Amendment. Landlord agrees that, subject to the provisions of Paragraph 4 hereof regarding the payment of unamortized leasing commissions, Landlord shall be solely responsible for any payment due to United Properties, LLC, arising from this transaction.   7.             Reference to and Effect on the Lease.   (a)           Upon the effectiveness of this Amendment, each reference in the Lease to “this Lease”, “hereunder”, “hereof, “herein” or words of like import referring to the Lease shall mean and be a reference to the Lease as amended hereby.   (b)           Except as specifically set forth above, the Lease remains in full force and effect and is hereby ratified and confirmed; provided, however, that the parties agree that the rights and obligations of each of them occurring prior to the Extension Commencement Date shall survive the execution and delivery of this Amendment.   (c)           Wherever there exists a conflict between this Amendment and the   8.              Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Minnesota.   9.              Headings. Section headings in this Amendment are included herein   10.            Time of Essence. Time shall be of the essence as to each and every term and provision of this Amendment and the Lease.   3   IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.   ST. PAUL PROPERTIES, INC.   SAUER-DANFOSS US COMPANY             By: /s/ Michael D. Elnicky   By: /s/ Karl Schmidt   Its: MICHAEL D. ELNICKY     Its: EVP & CFO     ASSET MANAGER         4

Listing Report:Supplement No. 201 dated Mar 25, 2010 to Prospectus dated Jul 13, 2009 File pursuant to Rule 424(b)(3) Registration Statement No. 333-147019 Prosper Marketplace, Inc. Borrower Payment Dependent Notes This Listing Report supplements the prospectus dated Jul 13, 2009 and provides information about each loan request (referred to as a "listing") and series of Borrower Payment Dependent Notes (the "Notes") we are currently offering. Prospective investors should read this Listing Report supplement together with the prospectus dated Jul 13, 2009 to understand the terms and conditions of the Notes and how they are offered, as well as the risks of investing in Notes. The following series of Notes are currently being offered: Borrower Payment Dependent Notes Series 403102 The following information pertains to the borrower loan being requested, that corresponds to the series of Notes to be issued upon the funding of the borrower loan, in the event the listing receives commitments to purchase Notes in an aggregate amount of the requested loan. Amount: Prosper Rating: D Auction Duration: 7 days Term: 36 months

Exhibit 13.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION1350, AS ADOPTED PURSUANT TO ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Annual Report on Form20-F/A of Elron Electronic Industries, Ltd. (the "Company") for the fiscal year ended December 31, 2008, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), the undersigned, Zvi Slovin, Co-Chief Executive Officer, hereby certifies, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section906 of the Sarbanes-Oxley Act of 2002, that: (i) The Report fully complies with the requirements of Section13(a)or 15(d), as applicable, of the Securities Exchange Act of 1934; and (ii) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: April 13, 2010 /s/Zvi Slovin Zvi Slovin Co-Chief Executive Officer (principal executive officer)

Sales Report:Supplement No. 73 dated Nov 10, 2010 to Prospectus dated Jul 26, 2010 File pursuant to Rule 424(b)(3) Registration Statement No. 333-147019 Prosper Marketplace, Inc. Borrower Payment Dependent Notes This Sales Report supplements the prospectus dated Jul 26, 2010 and provides information about each series of Borrower Payment Dependent Notes (the "Notes") that we have recently sold. You should read this Sales Report supplement together with the prospectus dated Jul 26, 2010 to understand the terms and conditions of the Notes and how they are offered, as well as the risks of investing in Notes. We have sold the following series of Notes: Borrower Payment Dependent Notes Series 479612 This series of Notes was issued and sold upon the funding of the borrower loan #45244, which corresponds to this series of Notes. The following information pertains to the borrower loan. Amount: Prosper Rating: A Auction Duration: 7 days Term: 36 months

Listing Report:Supplement No. 51 dated Jan 03, 2015 to Prospectus dated Dec 05, 2014 File pursuant to Rule 424(b)(3) Registration Statement Nos. 333-179941 and 333-179941-01 Prosper Funding LLC Borrower Payment Dependent Notes Prosper Marketplace, Inc.

Exhibit 10.5 EMPLOYMENT AGREEMENT     This EMPLOYMENT AGREEMENT, is dated as of _______, 20__ (this “Agreement”), by MRC Global Inc., a Delaware corporation (the “Company”), and ____________ (the “Executive”) to be effective as of ______________, 20____ (the “Effective Date”). WHEREAS, the Company desires to employ or continue to employ, as the case may be, the Executive as Executive Vice President and to utilize the Executive’s management services as indicated herein, and the Executive has agreed to provide such management services to the Company; WHEREAS, the Executive desires to accept the Company’s offer of employment or offer of continued employment as set forth herein to be effective on the Effective Date. [WHEREAS, the Company and Executive entered into an employment agreement dated _____________ (the “Prior Agreement”) and intend this Agreement to amend and restate the Prior Agreement in its entirety;] NOW, THEREFORE, in consideration of the mutual covenants contained herein and other valid consideration, the sufficiency of which is acknowledged, the parties hereto agree as follows: 1. Employment   1.1. Term.  The Company agrees to employ the Executive, and the Executive agrees to be employed by the Company, in each case, pursuant to this Agreement, for a period commencing on the Effective Date and ending on the earlier of:   (i) [the first anniversary of the Effective Date] [date] and   (ii) the termination of the Executive’s employment in accordance with Section 3 (the “Term”);   provided, that on [the first anniversary of the Effective Date][date] and each subsequent anniversary of the Effective Date, the Term shall automatically be extended for one year unless 90 days’ written notice of non-renewal is given by the Executive or the Company to the other party.   1.2Duties.  During the Term, the Executive shall serve as Executive Vice President of the Company and in such other positions as an officer or director of the Company or its affiliates as the Executive and the Chief Executive Officer (“CEO”) or the Board of Directors (the “Board”) of the Company shall mutually agree from time to time.  The Executive shall perform such duties, functions and responsibilities commensurate with the Executive’s positions as the CEO or Board reasonably directs.   1.3Exclusivity.  During the Term, the Executive shall devote his full time and attention to the business and affairs of the Company, shall faithfully serve the Company, and shall in all material respects conform to and comply with the lawful and reasonable directions and instructions that the Board gives the Executive, consistent with Section 1.2.  During the Term, the Executive shall use his best efforts to promote and serve the interests of the Company and shall not engage in any other business activity, whether or not the activity shall be engaged in for pecuniary profit, except that the Executive may sit on the boards or similar governing bodies of other companies with the consent of the CEO or the Board, which shall not be unreasonably withheld.   2. Compensation    2.1. Salary.  As compensation for the performance of the Executive’s services under this Agreement, during the Term, the Company shall pay to the Executive a salary at an annual rate of $_______ payable in accordance with the Company’s standard payroll policies (the “Base Salary”).  The Board (or a committee of the Board) shall review the Executive’s Base Salary annually and may adjust the Base Salary upward (but not lower) in the discretion of the Board (or a committee of the Board), based       on competitive data and the Executive’s performance.  No increase in Base Salary shall limit or reduce any other right or obligation of the Executive under this Agreement and the Base Salary shall not be reduced at any time (including after any increase).   2.2. Annual Bonus.  Beginning with the fiscal year that commences on January 1, 2014, for each completed fiscal year during the Term, the Executive shall be eligible to receive additional cash incentive compensation pursuant to the annual bonus plan of the Company in effect at the time (the “Annual Bonus”).  The target Annual Bonus shall be 75% of the Executive’s Base Salary as in effect from time to time with the actual Annual Bonus to be based upon such individual or Company performance criteria established for each fiscal year by the Board in consultation with the CEO.  The Board (or a committee of the Board) shall review the Executive’s Annual Bonus target percentage annually and may adjust the Annual Bonus target percentage upward (but not lower) in the discretion of the Board (or a committee of the Board), based on competitive data and the Executive’s performance.    2.3. Long-Term Incentive Plan Participation.  Beginning with the fiscal year that commences on January 1, 2014, for each fiscal year during the Term, the Executive shall be eligible to receive long-term incentive compensation awards pursuant to the Company’s 2011 Omnibus Incentive Plan or any replacement or successor plan (the “Long-Term Incentive Awards”) in such amounts as the Board (or a committee of the Board) determines in its discretion on terms and conditions (including time and performance based vesting conditions) that are generally applicable to other senior executives of the Company;  provided, that the mix of types of Long-Term Incentive Awards awarded to the Executive may differ from those awarded to other senior executives to address limitations on the amount and types of awards permitted by the 2011 Omnibus Incentive Plan or any replacement or successor plan.    2.4. Employee Benefits.  During the Term, the Executive shall be eligible to participate in such health and other group insurance and other employee benefit plans and programs of the Company and its U.S. affiliates as in effect from time to time on the same basis as other senior executives of the Company.   2.5. Vacation.  During the Term, the Executive shall be entitled to [20][25][___] days per calendar year of paid vacation.   2.6. commercially reasonable business out-of-pocket expenses that the Executive incurs during the Term in performing his duties under this Agreement upon presentation of documentation and in accordance with the expense reimbursement policy of the Company generally applicable to all senior executives as in effect   3. Termination of Employment   3.1. Generally.  The Company may terminate the Executive’s employment for any reason during the Term, and the Executive may voluntarily terminate his employment for any reason during the Term, in each case (other than a termination by the Company for Cause (defined below)) at any time upon not less than 14 days’ notice to the other party.  Upon the termination of the Executive’s employment with the Company for any reason, the Executive shall be entitled to any Base Salary earned but unpaid through the date of termination, any earned but unpaid Annual Bonus for completed fiscal years, any unreimbursed expenses in accordance with Section 2.5 and, to the extent not yet paid or provided, any other amounts or benefits required to be paid or provided under any plan, program, policy or practice or other contract or agreement of the Company and its affiliates through the date of termination of employment (collectively, the “Accrued Amounts”).   3.2. Certain Terminations   a) Termination by the Company other than for Cause, death or Disability; Termination by the Executive for Good Reason.  If the Executive’s employment is terminated during the Term by the   2       Company other than for Cause, death or Disability (defined below), or by the Executive for Good Reason (defined below), the Executive shall be entitled to:    (i)the Accrued Amounts,   (ii)a pro-rata bonus for the fiscal year of termination, based on actual performance through the end of the applicable fiscal year and the number of days that have elapsed in the fiscal year through the date of termination (a “Pro-Rata Bonus”),   (iii)payment of an amount equal to the sum of 1/12 of Base Salary and 1/12 of the target Annual Bonus each month for 18 months following termination (the “Severance Payments”), and   (iv)continuation of medical, dental and vision benefits on the same terms as active senior executives (“Medical Continuation”) for 18 months following termination. For the period of time during which the Executive is entitled to Medical Continuation under this Section 3.2(a)(iv) (or Section 3.2(c)(iii), if applicable), the Executive shall pay the full cost of the benefits as determined under the then-current practices of the Company on a monthly basis, provided that the Company shall reimburse the Executive the amounts paid for the coverage.  The Company shall pay all reimbursements to the Executive as required under this Section 3.2(a)(iv) on a regular, periodic basis within 30 days after the reimbursable amounts are incurred by the Executive;  provided that, prior to any reimbursement, the Company must possess the applicable and appropriate evidence of the reimbursable amount.  Any reimbursements provided during one taxable year of the Executive shall not affect the expenses eligible for reimbursement in any other taxable year of the Executive (with the exception of applicable lifetime maximums applicable to medical expenses or medical benefits described in Section 105(b) of the Internal Revenue Code of 1986, as amended (the “Code”) and the right to reimbursement under this Section 3.2(a)(iv) shall not be subject to liquidation or exchange for another benefit or payment.    Following the Medical Continuation period, Executive shall be eligible to elect COBRA payable at Executive’s expense in accordance with the Company’s standard procedures.    If, prior to a Change in Control (defined below) or after the 24-month period following a Change of Control, the Executive’s employment is terminated during the Term by the Company other than for Cause, death or Disability, or by the Executive for Good Reason, all outstanding options, restricted stock awards and other long-term equity awards will continue to vest for the next 18-month period as if Executive remained an active employee.  Effective as of the end of this 18-month period, any options, restricted stock awards and other long-term equity awards, in each case, that have not vested will be immediately forfeited.    Receipt of the Severance Payments, Medical Continuation and extended vesting period shall be conditioned on:    (x)the Executive’s continued compliance with his obligations under Section 5, and   (y)the Executive’s execution, delivery and non-revocation of an effective, valid and enforceable general release of claims (the “Release”) in the form attached as Exhibit A within 30 days of the effective date of Executive’s termination.    If the Executive breaches any of the covenants set forth in Section 5, the Executive shall immediately return to the Company any portion of the Severance Payments that have been paid to the Executive pursuant to this Section 3.2(a), the Medical Continuation shall immediately terminate and any options that became vested pursuant to this Section 3.2(a) shall immediately terminate.  Subject to Section 3.2(d) and the provision of a valid Release as required under this   3       Section 3.2(a), the Company will commencing paying or providing the Severance Payments (other than the Pro-Rata Bonus) and Medical Continuation on the 30th day following the effective date of Executive’s termination of employment.  Executive shall forfeit any and all payments, benefits and extended vesting rights payable or due under this Agreement if Executive does not provide the Company with an effective Release before such 30th day.  The Pro-Rata Bonus will be paid at the time the Company ordinarily pays incentive bonuses to its executives with respect to the fiscal year in which the termination occurs.    b) Termination upon Death or Disability.  If the Executive’s employment is terminated due to the Executive’s death or Disability, the Executive (or the Executive’s estate, if applicable) will receive (i) the Accrued Amounts, and (ii) a Pro-Rata Bonus.   c) Termination following a Change in Control.  If, during the Term and within 24 months following a Change in Control, the Executive’s employment is terminated by the Company other than for Cause, death or Disability, or by the Executive for Good Reason the Executive shall be entitled to:    (i) the Accrued Amounts,   (ii) payment of an amount equal to the sum of 24 months’ of Base Salary and two times the target Annual Bonus in effect on his date of termination (the “Change of Control Severance Payments”), and   (iii) Medical Continuation for 24 months.  Premiums for Medical Continuation shall be paid and reimbursed in accordance with the provisions contained in Section 3.2(a)(iv).  Following the Medical Continuation period, Executive shall be eligible to elect COBRA in accordance with the Company’s standard procedures.    Receipt of the Change in Control Severance Payments and Medical Continuation shall be conditioned on the Executive’s execution, delivery and non-revocation of an effective and valid Release in the form attached as Exhibit A within 30 days of Executive’s termination of employment.  Subject to Section 3.2(d) and the provision of a valid Release as required under this Section 3.2(c), the Company will pay the Change in Control Severance Payments in a single lump sum payment and commence providing Medical Continuation on the 30th day following the effective date of Executive’s termination of employment.  Executive shall forfeit any and all payments and benefits payable under this Agreement if Executive does not provide the Company with an effective Release before such 30th day.   d) Section 409A Specified Employee.  Notwithstanding anything to the contrary contained in this Agreement, if the Executive is a “specified employee” for purposes of Section 409A of the Code and regulations and other interpretive guidance issued under the Code (“Section 409A”), the Company shall not commence payment of the Severance Payments to the Executive until one day after the day which is six months after the Executive’s termination date (the “Delay Period”), with the first payment equaling the total of all payments that would have been paid during the Delay Period but for the application of Section 409A to those payments.  For purposes of this Agreement, the Executive’s employment with the Company shall be considered to have terminated when the Executive incurs a “separation from service” with the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code, and applicable administrative guidance issued under the Code.   e) Exclusive Remedy. The foregoing payments upon termination of the Executive’s employment described in Section 3.2 shall constitute the exclusive severance payments due the Executive upon a termination of his employment under this Agreement.   3.3Resignation from All Positions.  Upon the termination of the Executive’s employment with the Company for any reason, the Executive shall be deemed to have resigned, as of the date of such   4       termination, from all positions he then holds as an officer, director, employee and member of the Board (and any committee of the Board) and the board of directors or similar governing positions (and any committees of those bodies) of any of the Company’s affiliates.   3.4Cooperation.  Following the termination of the Executive’s employment with the Company for any reason, the Executive agrees to reasonably cooperate with the Company upon reasonable request of the Board and to be reasonably available to the Company with respect to matters arising out of the Executive’s services to the Company and its subsidiaries and affiliates.  The Company shall pay the Executive a reasonable fee for any those services and promptly reimburse the Executive for expenses reasonably incurred in connection with those matters.   4. Section 280G.    (i) If the aggregate of all amounts and benefits due to the Executive under this Agreement and under any other arrangement with the Company would, if received by the Executive in full and valued under Section 280G of the Code, constitute “parachute payments” as defined in and under Section 280G of the Code (collectively, “280G  Benefits”), and   (ii) if such aggregate would, if reduced by all federal, state and local taxes applicable thereto, including the excise tax imposed pursuant to Section 4999 of the Code, be less than the amount the Executive would receive, after all taxes, if the Executive received aggregate 280G Benefits equal (as valued under Section 280G of the Code) to only three times the Executive’s “base amount” as defined in and under Section 280G of the Code, less $1.00,   then the 280G Benefits shall (to the extent that the reduction of the 280G Benefits can achieve the intended result) be reduced or eliminated to the extent necessary so that the aggregate 280G Benefits received by the Executive will not constitute parachute payments.  An independent auditor (the “Auditor”) that the Company pays shall make the determinations with respect to this Section 4.  The Auditor shall be the Company’s regular independent auditor unless the Executive reasonably objects to the use of that firm, in which event the Auditor will be a nationally recognized United States public accounting firm that the parties choose.   5. Unauthorized Disclosure; Non-Competition; Non-Solicitation; Interference with Business Relationships; Proprietary Rights   5.1. Unauthorized Disclosure.  The Executive agrees and understands that in the Executive’s position with the Company, the Executive has been and will continue to be exposed to and has and will receive information relating to the confidential affairs of the Company and its affiliates, including technical information, intellectual property, business and marketing plans, strategies, customer information, software, other information concerning the products, promotions, development, financing, expansion plans, business policies and practices of the Company and its affiliates and other forms of information that the Company and its affiliates consider to be confidential or in the nature of trade secrets (including, ideas, research and development, know-how, formulas, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals) (collectively, the “Confidential Information”).  “Confidential Information” does not include any information that becomes generally available to the public other than as a result of the Employee’s public use, disclosure, or fault.  The Executive agrees that at all times during the Executive’s employment with the Company and thereafter, the Executive shall not disclose such Confidential Information, either directly or indirectly, to any person or entity other than in connection with the Executive’s employment with the Company without the prior written consent of the Company and shall not use or attempt to use any such Confidential Information in any manner other than in connection with his employment with the Company, unless required by law to disclose the Confidential Information, in which case the Executive shall provide the Company with written notice of the requirement as far in advance of the anticipated disclosure as possible.  This confidentiality covenant has no temporal, geographical or territorial restriction.  Upon termination of the Executive’s   5       employment with the Company, the Executive shall promptly supply to the Company all property, keys, notes, memoranda, writings, lists, files, reports, customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data and any other tangible product or document that has been produced by, received by or otherwise submitted to the Executive during the Executive’s employment with the Company, and any copies thereof in his (or capable of being reduced to his) possession; provided, that the Executive may retain his full rolodex or similar address and telephone directories.    5.2. Non-Competition.  By and in consideration of the Company entering into this Agreement and the payments made and the benefits that this Agreement provides, and in further consideration of the Executive’s exposure to the Confidential Information of the Company and its affiliates, the Executive agrees that the Executive shall not, during the Executive’s employment with the Company and for 18 months thereafter (or 24 months thereafter if Executive is entitled to receive the benefits of Section 3.2(c)) (in the applicable case, the “Restriction Period”), directly or indirectly, own, manage, operate, join, control, be employed by, or participate in the ownership, management, operation or control of, or be connected in any manner with, including, without limitation, holding any position as a stockholder, director, officer, consultant, independent contractor, employee, partner, or investor in, any Restricted Enterprise (defined below); provided, that in no event shall ownership of one percent or less of the outstanding securities of any class of any issuer whose securities are registered under the Securities Exchange Act of 1934, as amended, standing alone, be prohibited by this Section 5.2, so long as the Executive does not have, or exercise, any rights to manage or operate the business of the issuer other than rights as an equity or stock holder of the issuer.  “Restricted Enterprise” means any person or entity that is actively engaged in any geographic area in any business which is either:   (i) in competition with the business of the Company or any of its subsidiaries or affiliates or   (ii) proposed to be conducted by the Company or any of its subsidiaries or affiliates in their respective business plans as in effect at that time.    During the Restriction Period, upon request of the Company, the Executive shall notify the Company of the Executive’s then-current employment status.   5.3Non-Solicitation of Employees.  During the Restriction Period, the Executive shall not directly or indirectly contact, induce or solicit (or assist any person or entity to contact, induce or solicit) for employment any person who is, or within 12 months prior to the date of the solicitation was, an employee of the Company or any of its subsidiaries or affiliates.   5.4Interference with Business Relationships.  During the Restriction Period (other than in connection with carrying out his responsibilities for the Company and its affiliates), the Executive shall not directly or indirectly contact, induce or solicit (or assist any person or entity to contact, induce or solicit) any customer or client of the Company or its subsidiaries or affiliates to terminate its relationship or otherwise cease doing business in whole or in part with the Company or its subsidiaries or affiliates, or directly or indirectly interfere with (or assist any person or entity to interfere with) any material relationship between the Company or its subsidiaries or affiliates and any of its or their customers or clients so as to cause harm to the Company or its affiliates.   5.5Extension of Restriction Period.  The Restriction Period shall be tolled for any period during which the Executive is in breach of any of Sections 5.2, 5.3 or 5.4.   5.6Proprietary Rights.  The Executive shall disclose promptly to the Company any and all inventions, discoveries, and improvements (whether or not patentable or registrable under copyright or similar statutes), and all patentable or copyrightable works, initiated, conceived, discovered, reduced to practice, or made by him, either alone or in conjunction with others, during the Executive’s employment with the Company and related to the business or activities of the Company and its affiliates (the “Developments”).  Except to the extent any rights in any Developments constitute a work   6       made for hire under the U.S. Copyright Act, 17 U.S.C. § 101, et seq., that are owned ab initio by the Company or its applicable affiliate, the Executive assigns all of his right, title and interest in all Developments (including all intellectual property rights therein) to the Company or its nominee without further compensation, including all rights or benefits therefor, including without limitation the right to sue and recover for past and future infringement.  The Executive acknowledges that any rights in any Developments constituting a work made for hire under the U.S. Copyright Act, 17 U.S.C. § 101, et seq., are owned upon creation by the Company or its applicable affiliate as the Executive’s employer.  Whenever requested to do so by the Company, the Executive shall execute any and all applications, assignments or other instruments which the Company shall deem necessary to apply for and obtain trademarks, patents or copyrights of the United States or any foreign country or otherwise protect the interests of the Company and its affiliates therein.  These obligations shall continue beyond the end of the Executive’s employment with the Company with respect to inventions, discoveries, improvements or copyrightable works initiated, conceived or made by the Executive while employed by the Company, and shall be binding upon the Executive’s employers, assigns, executors, administrators and other legal representatives.  In connection with his execution of this Agreement, the Executive has informed the Company in writing of any interest in any inventions or intellectual property rights that he holds as of the date hereof as set forth on Exhibit B (the “Existing Inventions”).  Notwithstanding anything to the contrary in this Agreement, the Developments shall not include any Existing Inventions.  If the Company is unable for any reason, after reasonable effort, to obtain the Executive’s signature on any document needed in connection with the actions described in this Section 5.6, the Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as the Executive’s agent and attorney-in-fact to act for and on the Executive’s behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Section 5.6 with the same legal force and effect as if executed by the Executive.   5.7Remedies.  The Executive agrees that any breach of the terms of this Section 5 would result in irreparable injury and damage to the Company for which the Company would have no adequate remedy at law. The Executive, therefore, also agrees that in the event of a breach of this Section 5 or any threat of such a breach, the Company shall be entitled to an immediate injunction and restraining order to prevent the breach, threatened breach or continued breach by the Executive or any and all persons acting for or with the Executive, without having to prove damages, in addition to any other remedies to which the Company may be entitled at law or in equity, in each case, without the necessity of posting a bond or other security with the applicable court or body.  The terms of this Section 5.8 shall not prevent the Company from pursuing any other available remedies for any breach or threatened breach of this Agreement, including, the recovery of damages from the Executive.  The Executive and the Company further agree that the provisions of the covenants contained in this Section 5 are reasonable and necessary to protect the businesses of the Company and its affiliates because of the Executive’s access to Confidential Information and his material participation in the operation of such businesses.   6. Representation.  The Executive and the Company each represents and warrants that:   a) he or it is not subject to any contract, arrangement, policy or understanding, or to any statute, governmental rule or regulation, that in any way limits his or its ability to enter into and fully perform his or its obligations under this Agreement, and   b) he or it is not otherwise unable to enter into and fully perform his or its   7. Non-Disparagement.  From and after the Effective Date and following termination of the Executive’s employment with the Company, the Executive agrees not to make any statement (other than statements made in connection with carrying out his responsibilities for the Company and its subsidiaries and affiliates) that is intended to become public, or that should reasonably be expected to become public, and that criticizes, ridicules, disparages or is otherwise derogatory of the Company or any of its subsidiaries, affiliates, employees,   7       officers, directors or stockholders.  The Company and its affiliates shall cause their officers and directors not to make any such statement regarding the Executive.   8. Withholding. The Company may withhold from any amounts payable under this Agreement such United States federal, state local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.  The Executive shall be solely responsible for the payment of all taxes relating to the payment or provision of any amounts or benefits under this Agreement.   9. Definitions. For purposes of this Agreement, the following capitalized terms   9.1. “Cause” means the Executive’s:   a) continuing failure, for more than ten days after the Company’s written notice to the Executive of the failure, to perform such duties as the Company reasonably requests,   b) failure to observe material policies generally applicable to officers or employees of the Company unless the failure is capable of being cured and is cured within ten days of the Executive receiving written notice of the failure,   c) failure to cooperate with any internal investigation of the Company or any of its affiliates;   d) commission of any act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates or indictment or conviction of any felony; or   e) material violation of the provisions of this Agreement unless the violation is capable of being cured and is cured within ten days of the Executive receiving written notice of the violation.   9.2“Change in Control” means:   a) An acquisition (other than directly from the Company) of any voting securities of the Company (the “Voting Securities”) by any “Person” (for purposes of this Section 9.2, as the term “person” is used for purposes of Section 13(d) or 14(d) of the Exchange Act), immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent of:   (i) the then-outstanding shares of common stock, par value $.01 per share, of the Company and any other securities into which those shares are changed or for which those shares are exchanged (“Shares”) or   (ii) the combined voting power of the Company’s then-outstanding Voting Securities;   provided, that in determining whether a Change in Control has occurred pursuant to this Section 9.2(a), the acquisition of Shares or Voting Securities in a Non-Control Acquisition (defined below) shall not constitute a Change in Control.  A “Non-Control Acquisition” means an acquisition by:   (i) an employee benefit plan (or a trust forming a part thereof) maintained by:   (A) the Company or   (B) any corporation or other Person the majority of the voting power, voting equity securities or equity interest of which is owned, directly or indirectly, by the Company   (for purposes of this definition, a “Related Entity”),      8       (ii) the Company or any Related Entity, or   (iii) any Person in connection with a Non-Control Transaction (defined below); or   b) The consummation of:   (i) A merger, consolidation or reorganization (x) with or into the Company or (y) in which securities of the Company are issued (a “Merger”), unless the Merger is a “Non-Control Transaction.”    A “Non-Control Transaction” means a Merger in which:   (A) the shareholders of the Company immediately before the Merger own directly or indirectly immediately following the Merger at least a majority of the combined voting power of the outstanding voting securities of: (I) the corporation resulting from the Merger (the “Surviving Corporation”), if there is no Person that Beneficially Owns, directly or indirectly, 50% or more of the combined voting power of the then-outstanding voting securities of the Surviving Corporation (a “Parent Corporation”), or   (II) if there is one or more than one Parent Corporation, the ultimate Parent Corporation;   (B) the individuals who were members of the Board immediately prior to the execution of the agreement providing for the Merger constitute at least a majority of the members of the board of directors of:   (I) the Surviving Corporation, if there is no Parent Corporation, or   (II) Corporation; and   (C) no Person other than:   (I) the Company or another corporation that is a party to the agreement of Merger,   (II) any Related Entity,   (III) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to the Merger, was maintained by the Company or any Related Entity, or   (IV) any Person who, immediately prior to the Merger had Beneficial Ownership of 50% or more of the then outstanding Shares or Voting Securities,   has Beneficial Ownership, directly or indirectly, of 50% or more of the combined voting power of the outstanding voting securities or common stock of:   (x) the Surviving Corporation, if there is no Parent Corporation, or   (y) if there is one or more than one Parent Corporation, the ultimate Parent Corporation.   9         c) A complete liquidation or dissolution of the Company; or   d) The sale or other disposition of all or substantially all of the assets of the Company and its subsidiaries taken as a whole to any Person (other than (x) a transfer to a Related Entity or (y) the distribution to the Company’s shareholders of the stock of a Related Entity or any other assets).   solely because any Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or Voting Securities as a result of the acquisition of Shares or Voting Securities by the Company which, by reducing the number of Shares or Voting Securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons; provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or Voting Securities by the Company and, after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or Voting Securities and such Beneficial Ownership increases the percentage of the then outstanding Shares or Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur.   9.3“Disability” means the Executive is entitled to receive long-term disability benefits under the long-term disability plan of the Company or its affiliates in which Executive participates, or, if there is no such plan, the Executive’s inability, due to physical or mental ill health, to perform the essential functions of the Executive’s job, with or without a reasonable accommodation, for 180 days during any 365 day period irrespective of whether such days are consecutive.   9.4Good Reason” means   a) a material and adverse change in the Executive’s duties or responsibilities; provided that an assignment to the President if the duties of CEO are split between the CEO and the President or to the Chief Operating Officer shall not be a material and adverse change;   b)a reduction in the Executive’s Base Salary or target Annual Bonus percentage other than reductions that are equal in percentage and applicable to all executive vice presidents of the Company;   c) breach by the Company of any material provision of this Agreement; or   d) relocation of Executive’s principal place of employment by more than 50 miles from Executive’s then current principal place of employment.   provided, that the Executive must give notice of termination for Good Reason within 60 days of the occurrence of the first event giving rise to Good Reason.   10. Miscellaneous.   10.1. Indemnification. The Company shall indemnify the Executive to the fullest extent provided under the Company’s By-Laws.  The Company shall also maintain director and officer liability insurance in such amounts and subject to such limitations as the Board shall, in good faith, deem appropriate for coverage of directors and officers of the Company.   10.2. Amendments and Waivers.  This Agreement and any of the provisions of this Agreement may be amended, waived (either generally or in a particular instance and either retroactively or prospectively), modified or supplemented, in whole or in part, only by written agreement signed by the parties; provided, that, the observance of any provision of this Agreement may be waived in writing by the party that will lose the benefit of such provision as a result of such waiver.  The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing   10       waiver of the breach or as a waiver of any other or subsequent breach, except as otherwise explicitly provided for in the waiver.  Except as otherwise expressly provided in this Agreement, no failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder, or otherwise available in respect thereof at law or in equity, shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by the party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.   10.3. Assignment; No Third-Party Beneficiaries.  This Agreement, and the Executive’s rights and obligations hereunder, may not be assigned by the Executive, and any purported assignment by the Executive in violation of this Agreement shall be null and void.  Nothing in this Agreement shall confer upon any person not a party to this Agreement, or the legal representatives of the person, any rights or remedies of any nature or kind whatsoever under or by reason of this Agreement.  Executive acknowledges that for administrative convenience or other good business reasons, the Company may administer this Agreement directly or through a wholly owned, direct or indirect subsidiary.   10.4. Notices.  Unless otherwise provided in this Agreement, all notices, requests, demands, claims and other communications provided for under the terms of this Agreement shall be in writing.  Any notice, request, demand, claim or other communication under this Agreement shall be sent by   a) personal delivery (including receipted courier service) or overnight delivery service,   b)registered or certified mail, return receipt requested, postage prepaid and addressed to the intended recipient as set forth below or   c)e-mail delivery, with confirmation of receipt, to the Company’s General Counsel:       MRC Global, Inc.   909 Fannin Street Suite 3100   Houston, TX 77010       Attention:  General Counsel   e-mail:  []     If to the Executive:_________, at Executive’s principal office at the Company (e-mail: [] (during the Term), and at all times to his principal residence as reflected in the records of the Company.   All such notices, requests, consents and other communications shall be deemed to have been given when received.  Either party may change its facsimile number or its address to which notices, requests, demands, claims and other communications under are this Agreement to be delivered by giving the other parties notice in the manner then set forth.   10.5Governing Law.  This Agreement shall be construed and enforced in accordance with, and the rights and obligations of the parties shall be governed by, the laws of the State of Texas, without giving effect to the conflicts of law principles thereof.   10.6Severability.  Whenever possible, each provision or portion of any provision of this Agreement, including those contained in Section 5 will be interpreted in such manner as to be effective and valid under applicable law but the invalidity or unenforceability of any provision or portion of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision or portion of any provision, in any other jurisdiction.  In addition, should a court or arbitrator determine that any provision or portion of any provision of this Agreement, including those contained   11       in Section 5, is not reasonable or valid, either in period of time, geographical area, or otherwise, the parties hereto agree that such provision should be interpreted and enforced to the maximum extent which such court or arbitrator deems reasonable or valid.   10.7Entire Agreement.  From and after the Effective Date this Agreement shall constitute the entire agreement between the parties hereto, and supersede all prior representations, agreements and understandings (including any prior course of dealings), both written and oral, between the parties hereto with respect to   10.8Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.  This Agreement may be delivered through the means of e-mail delivery of a portable document format (.pdf) file of the signed Agreement.   10.9Binding Effect.  This Agreement shall inure to the benefit of and be binding on, the successors of each of the parties, including, without limitation, the Executive’s heirs and the personal representatives of the Executive’s estate and any successor to all or substantially all of the business and/or assets of the Company.   10.10General Interpretive Principles.  The name assigned this Agreement and headings of the sections, paragraphs, subparagraphs, clauses and subclauses of this Agreement are for convenience of reference only and shall not in any way affect the meaning or interpretation of any of the provisions hereof.  Words of inclusion shall not be construed as terms of limitation herein, so that references to “include,” “includes” and “including” shall not be limiting and shall be regarded as references to non-exclusive and non-characterizing illustrations. In this Agreement, references to a “party” mean either of the Company or the Executive and to the “parties” mean both of them; references to a “person” mean any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof; references to “Sections” mean the sections and subsections of this Agreement; references to “Exhibits” mean the exhibits to this Agreement; references to the singular include the plural and vice versa, in each case, unless the context expressly requires the contrary.   10.11Mitigation.  Notwithstanding any other provision of this Agreement,   a)the Executive will have no obligation to mitigate damages for any breach or termination of this Agreement by the Company, whether by seeking employment or otherwise and   b)the amount of any payment or benefit due the Executive after the date of such breach or termination will not be reduced or offset by any payment or benefit that the Executive may receive from any other source.   10.12Section 409A Compliance.  This Agreement is intended to comply with Section 409A (to the extent applicable) and, to the extent it would not adversely impact the Company, the Company agrees to interpret, apply and administer this Agreement in the least restrictive manner necessary to comply with such requirements and without resulting in any diminution in the value of payments or benefits to the Executive.   10.13Retirement and Equity.  If a “Retirement” occurs under any award agreement governing any options, restricted stock or other long-term incentive awards because the Executive terminates employment on or after age 65, the Company hereby waives any requirement under the award agreement that the Executive must remain employed with the Company for any period of time prior to Retirement for the award to vest beginning upon a Retirement in accordance with the terms of the award agreement.     first written above.   12                 MRC GLOBAL INC.                 By: _______________________     Name:     Title:                 EXECUTIVE                  _______________________     Name:             13         Exhibit A Release     1. In consideration of the payments and benefits to be made under the Employment Agreement, effective dated as _____________ (the “Employment Agreement”), to which __________ (the “Executive”) and MRC Global, Inc. (the “Company”) (each of the Executive and the Company, a “Party” and collectively, the “Parties”) are parties, the sufficiency of which the Executive acknowledges, the Executive, with the intention of binding himself and his heirs, executors, administrators and assigns, does hereby release, remise, acquit and forever discharge the Company and each of its subsidiaries and affiliates (the “Company Affiliated Group”), their present and former officers, directors, executives, shareholders, agents, attorneys, employees and employee benefit plans (and the fiduciaries thereof), and the successors, predecessors and assigns of each of the foregoing (collectively, the “Company Released Parties”), of and from any and all claims, actions, causes of action, complaints, charges, demands, rights, damages, debts, sums of money, accounts, financial obligations, suits, expenses, attorneys’ fees and liabilities of whatever kind or nature in law, equity or otherwise, whether accrued, absolute, contingent, unliquidated or otherwise and whether now known or unknown, suspected or unsuspected, which the Executive, individually or as a member of a class, now has, owns or holds, or has at any time heretofore had, owned or held, arising on or prior to the date hereof, against any Company Released Party that arises out of or relates to, the Employment Agreement, the Executive’s employment with the Company or any of its subsidiaries and affiliates, or any termination of such employment, including claims   (i) for severance or vacation benefits, unpaid wages, salary or incentive payments,   (ii) for breach of contract, wrongful discharge, impairment of economic opportunity, defamation, intentional infliction of emotional harm or other tort,   (iii) for any violation of applicable state and local labor and employment laws (including, without limitation, all laws concerning unlawful and unfair labor and employment practices) and   (iv) for employment discrimination under any applicable federal, state or local statute, provision, order or regulation, and including, without limitation, any claim under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Civil Rights Act of 1988, the Fair Labor Standards Act, the Americans with Disabilities Act (“ADA”), the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Age Discrimination in Employment Act (“ADEA”), and any similar or analogous state statute, excepting only:   1.1rights of the Executive arising under, or preserved by, this Release or Section 3 of the Employment Agreement;   1.2the right of the Executive to receive COBRA continuation coverage in accordance with applicable law;   1.3claims for benefits under any health, disability, retirement, life insurance or other similar employee benefit plan (within the meaning of Section 3(3) of ERISA) of the Company Affiliated Group; and   1.4rights to indemnification the Executive has or may have under the by-laws or certificate of incorporation of any member of the Company Affiliated Group or as an insured under any director’s and officer’s liability insurance policy or other insurance policy of the Company and its subsidiaries that benefits the Executive now or previously in force.         2. The Employee acknowledges and agrees that the release of claims set forth in this Release is not to be construed in any way as an admission of any liability whatsoever by any Company Released Party, any such liability being expressly denied.   3. The release of claims set forth in this Release applies to any relief no matter how called, including, without limitation, wages, back pay, front pay, compensatory damages, liquidated damages, punitive damages, damages for pain or suffering, costs, and attorneys’ fees and expenses.   4. The Executive specifically acknowledges that his acceptance of the terms of the release of claims set forth in this Release is, among other things, a specific waiver of his rights, claims and causes of action under Title VII, ADEA, ADA and any state or local law or regulation in respect of discrimination of any kind; provided, that nothing in this Release shall be deemed, nor does anything contained herein purport, to be a waiver of any right or claim or cause of action which by law the Executive is not permitted to waive.   5. As to rights, claims and causes of action arising under the ADEA, the Executive acknowledges that he has been given but not utilized a period of 21 days to consider whether to execute this Release.  If the Executive accepts the terms hereof and executes this Release, he may thereafter, for a period of seven days following (and not including) the date of execution, revoke this Release as it relates to the release of claims arising under the ADEA.  If no such revocation occurs, this Release shall become irrevocable in its entirety, and binding and enforceable against the Executive, on the day next following the day on which the foregoing seven-day period has elapsed.  If such a revocation occurs, the Executive shall irrevocably forfeit any right to payment of the Severance Payments (as defined in the Employment Agreement), but the remainder of the Employment Agreement shall continue in full force.   6. Other than as to rights, claims and causes of action arising under the ADEA, the release of claims set forth in this Release shall be immediately effective upon execution by the Executive.   7. The Executive acknowledges and agrees that he has not, with respect to any transaction or state of facts existing prior to the date hereof, filed any complaints, charges or lawsuits against any Company Released Party with any governmental agency, court or tribunal.   8. The Executive acknowledges that he has been advised to seek, and has had the opportunity to seek, the advice and assistance of an attorney with regard to the release of claims set forth in this Release, and has been given a sufficient period within which to consider the release of claims set forth in this Release.   9. The Executive acknowledges that the release of claims set forth in this Release relates only to claims which exist as of the date of this Release.   10. The Executive acknowledges that the Severance Payments he is receiving in connection with the release of claims set forth in this Release and his obligations under this Release are in addition to anything of value to which the Executive is entitled from the Company and any of its affiliates.   11. Each provision of this Release is severable from this Release, and if one or more provisions hereof are declared invalid, the remaining provisions shall nevertheless remain in full force and effect.  If any provision of this Release is so broad, in scope, or duration or otherwise, as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.   12. This Release constitutes the complete agreement of the Parties in respect of the subject matter hereof and shall supersede all prior agreements between the Parties in respect of the subject matter hereof except to the extent set forth in this Release.   13. The failure to enforce at any time any of the provisions of this Release or to require at any time performance by another party of any of the provisions hereof shall in no way be construed to be a   2       waiver of such provisions or to affect the validity of this Release, or any part hereof, or the right of any party thereafter to enforce each and every such provision in accordance with the terms of this Release.   14. This Release may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile shall be deemed effective for all purposes.   15. This Release shall be binding upon any and all successors and assigns of the Executive and the Company.   16. Except for issues or matters as to which federal law is applicable, this Release shall be governed by and construed and enforced in accordance with the laws of the State of Texas without giving effect to the conflicts of law principles thereof.       3       IN WITNESS WHEREOF, this Release has been signed by or on behalf of each of the Parties, all as of ________________________________.                     MRC GLOBAL INC.           By:_______________________________________________   Name:   Title:           EXECUTIVE       _____________________________________________   Andrew R. Lane                                4       Exhibit B   Existing Inventions     [None.]      

  Exhibit 10.02   Execution Version   Lock-Up Agreement   September ___, 2020   This Lock-Up Agreement (this “Agreement”) is executed by and between SRAX, Inc. (“Parent”), and the undersigned signatory in connection with the Agreement and Plan of Merger, dated as of September 4, 2020 (the “Merger Agreement”), by and among Parent, Townsgate Merger Sub 1, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub 1”), LD Micro, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub 2”), LD Micro, Inc., a California corporation (“LD Micro”), and Christopher Lahiji, as the sole stockholder of LD Micro, pursuant to which Merger Sub 1 will merge with and into LD Micro, with LD Micro surviving the merger, and then LD Micro will merge with and into Merger Sub 2, with Merger Sub 2 surviving the merger as a wholly owned subsidiary of Parent (collectively, the “Merger”) and pursuant to which all outstanding shares of LD Micro’s capital stock will be exchanged for shares of Class A common stock, par value $0.001 per share (the “Common Stock”), of Parent.   As an inducement to the parties entering into the Merger Agreement and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, by executing this Agreement, agrees that, without the prior written consent of Parent, during the period commencing at the Effective Time (as defined in the Merger Agreement) and continuing until the time set forth in the following paragraph, the undersigned will not offer, pledge, sell, contract to sell, or otherwise transfer or dispose of or lend, directly or indirectly, any shares of Common Stock issued to the undersigned pursuant to the Merger Agreement (the “Securities”) (such restrictions, the “Lock-Up Restrictions”).   Notwithstanding the terms of the foregoing paragraph, the Lock-Up Restrictions shall automatically terminate and cease to be effective with respect to the Securities on the thirty six (36) month anniversary of the date of the Effective Time. The period during which the Lock-Up Restrictions apply to any particular portion of the Securities shall be deemed the “Lock-Up Period” with respect thereto.   The undersigned agrees that the Lock-Up Restrictions preclude the undersigned from engaging in any hedging or other transaction during the Lock-Up Period with respect to any then-subject Securities which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of such Securities even if such Securities would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) during the Lock-Up Period with respect to such Securities or with respect to any security that includes, relates to, or derives any significant part of its value from such Securities.   Notwithstanding the foregoing, the undersigned may transfer any of the Securities:     (i) as a bona fide gift or gifts or charitable contribution(s),         (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned,           (iii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (1) to another corporation, partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) or subsidiary of the undersigned or that controls, is controlled by, or under common control with the undersigned, (2) as distributions of Securities to partners, subsidiaries, affiliates, limited liability company members or stockholders of the undersigned, holders of similar equity interests in the undersigned and any investment fund or affiliated entity or (3) as a transfer or distribution to any employee of the undersigned or an entity listed in clause (1) above or the undersigned,         (iv) if the undersigned is a trust, to the beneficiary of such trust,         (v) by testate succession or intestate succession,         (vi) to any immediate family member, any investment fund, family partnership, family limited liability company or other entity controlled or managed by the undersigned,         (vii) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (vi),         (viii) pursuant to transfers in response to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to or with all holders of Parent’s capital stock involving a “change of control” (as defined below) of Parent that has been approved by the board of directors of Parent, provided that in the event that such tender offer, merger, consolidation or other such transaction is not completed, the Securities shall remain subject to the restrictions contained in this Agreement. For purposes of this clause (xi), “change of control” means the consummation of any bona fide third-party tender offer, merger, consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, other than Parent, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than 50% of the total voting power of the voting stock of Parent (or surviving entity), or all or substantially all of the assets of Parent,         (ix) pursuant to a domestic relations order or order of a court or regulatory agency, or         (x) pursuant to a pledge of shares as collateral for margin loans, and any transfer upon foreclosure upon such pledged shares;   provided, in the case of clauses (i)-(vii), that (A) such transfer shall not involve a disposition for value and (B) the transferee agrees in writing with Parent to be bound by the terms of this Agreement; and provided, further, in the case of clauses (ix) and (x) the transferee agrees in writing with Parent to be bound by the terms of this Agreement, and in the case of clauses (i), (ii), (iv)-(vii), no filing by any party (donor, donee, transferor or transferee) under Section 16(a) of the Exchange Act shall be required or shall be made voluntarily in connection with such transfer reporting a reduction in beneficial ownership of Securities during the Lock-Up Period. For purposes of this Agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin, and shall include any former spouse.         In addition, the foregoing restrictions shall not apply to (i) conversion or exercise of (x) warrants or (y) convertible notes into Parent Common Stock or into any other security convertible into or exercisable for Parent Common Stock that are outstanding as of the effective time of the Merger (but for the avoidance of doubt, excluding all manners of conversion or exercise that would involve a sale in the open market of any securities relating to such warrants, whether to cover the applicable aggregate exercise price, withholding tax obligations or otherwise); provided that it shall apply to any of the Securities issued upon such conversion or exercise, or (ii) the establishment of any contract, instruction or plan (a “Plan”) that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act; provided that (a) no sales of the Securities shall be made pursuant to such a Plan prior to the expiration of the Lock-Up Period and (b) to the extent a public announcement or filing under the Exchange Act is required of the undersigned or required or voluntarily made by or on behalf of Parent regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Parent Common Stock may be made under such plan during the Lock-Up Period. The undersigned may not voluntarily make any such announcement or filing with respect to any such plan. In furtherance of the restrictions set forth in this Agreement, Parent and its transfer agent and registrar are hereby authorized to decline to make any transfer of shares of Parent Common Stock if such transfer would constitute a violation or breach of this Agreement.   In addition, the Lock-Up Restrictions shall be automatically waived, on a daily basis, with regard to such number of Securities equal to ten percent (10%) of the daily volume during each day Parent’s Class A common stock trades over $5.00 per share with a volume equal to or greater than 250,000 shares. For purposes of clarity, such waiver shall require the shares subject to the waiver to be sold on the day during which the waiver applies, subject to the customary securities settlement period in accordance with Rule 15c6-1 under the Exchange Act.   The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Agreement and that upon request, the undersigned will execute any additional documents reasonably necessary to ensure the validity or enforcement of this Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.   The undersigned understands that the undersigned shall be released from all obligations under this Agreement if the Merger Agreement is terminated pursuant to its terms or if the Merger is not consummated by the earlier of (i) five (5) business days of the date of the Merger Agreement, or (ii) December 31, 2020.   The undersigned understands that the parties to the Merger Agreement are entering into such agreement in reliance upon this Agreement.   of the State of Delaware.           power and authority to enter into this Lock-Up Agreement and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof. Any obligations of the undersigned shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.     Very truly yours,       SRAX, Inc.         By:       Signature         Name:           Title:     Dated: _______________         undersigned.     Very truly yours,             Printed Name of Holder         By:       Signature               Printed Name of Person Signing   (and indicate capacity of person signing if   signing as custodian, trustee, or on behalf of an entity)   Dated: _______________      

Exhibit 10.1.15   FOURTEENTH AMENDMENT TO SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF CORPORATE OFFICE PROPERTIES, L.P.   THIS FOURTEENTH AMENDMENT (the “Amendment”) to the Second Amended and Restated Limited Partnership Agreement of Corporate Office Properties, L.P., a Delaware limited partnership (the “Partnership”), is made and entered into as of December 18, 2003, by and among the undersigned parties.   RECITALS   A.            The Partnership is a limited partnership organized under the Delaware Revised Uniform Limited Partnership Act (the “Act”) and governed by that certain Second Amended and Restated Limited Partnership Agreement dated as of January, 1999, as amended by that certain First Amendment to Second Amended and Restated Limited Partnership Agreement dated as of December 21, 1999, that certain Second Amendment to Second Amended and Restated Limited Partnership Agreement dated as of December 21, 1999, that certain Third Amendment to Second Amended and Restated Limited Partnership Agreement dated as of September 29, 2000, that certain Fourth Amendment to Second Amended and Restated Limited Partnership Agreement dated as of November 27, 2000, that certain Fifth Amendment to Second Amended and Restated Limited Partnership Agreement dated as of January 25, 2001, that certain Sixth Amendment to Second Amended and Restated Limited Partnership Agreement dated as of April 6, 2001, that certain Seventh Amendment to the Second Amended and Restated Partnership Agreement dated as of August 30, 2001, that certain Eighth Amendment to the Second Amended and Restated Partnership Agreement dated September 14, 2001, that certain Ninth Amendment to the Second Amended and Restated Partnership Agreement dated October 16, 2001, that certain Tenth Amendment to the Second Amended and Restated Partnership Agreement dated December 29, 2001, that certain Eleventh Amendment to the Second Amended and Restated Partnership Agreement dated December 15, 2002, that certain Twelfth Amendment to the Second Amended and Restated Partnership Agreement dated June 2, 2003, and that certain Thirteenth Amendment to the Second Amended and Restated Partnership Agreement dated August 11, 2003 (as amended, the “Agreement”).   B.            The sole general partner of the Partnership is Corporate Office Properties Trust, a real estate investment trust formed under the laws of the State of Maryland (the “General Partner”).   C.            The General Partner has issued 2,000,000 of its 7.5% Series H Cumulative Redeemable Preferred Shares (the “Series H Preferred REIT Shares”) in a public offering (the “Offering”).     D.            As required under Sections 4.2(B) and (C) of the Agreement, the General Partner intends to transfer the net proceeds of the Offering (or cause them to be transferred) to or for the benefit of the Partnership in exchange for additional Partnership Interests in the Partnership having designations, rights and preferences substantially similar to the economic rights of the holders of the Series H Preferred REIT Shares (the “Series H Preferred Units”).   E.             The General Partner desires to amend the Agreement to acknowledge the contribution of the net proceeds of the Offering by the General Partner to the Partnership in exchange for the Series H Preferred Units.  Unless otherwise defined herein, all capitalized terms used in this Amendment shall have the same meanings as set forth in the Agreement.   NOW THEREFORE, in consideration of the foregoing and of the mutual premises set forth herein, the General Partner, intending to be legally bound hereby, hereby amends the Agreement as follows, effective as of the date set forth above.   1.             The foregoing recitals to this Amendment are hereby incorporated in and made a part of this Amendment.   (a)           Upon consummation of the Offering, the General Partner shall contribute the net proceeds of the Offering to the Partnership.   (b)           Upon the contribution of the net proceeds of the Offering to the Partnership by the General Partner, and in accordance with Section 4.2(B) of the Agreement, the Partnership shall issue to the General Partner 2,000,000 Series H Preferred Units, equal to the number of Series H Preferred REIT Shares issued by the General Partner in connection with the Offering.   (c)           For purposes of the Agreement, including the maintenance of Capital Accounts, the General Partner shall be treated as making a Capital Contribution of $48,425,000, equal to the product of $24.2125 times the number of Series H Preferred Units issued to the General Partner.   (d)           The General Partner is hereby amending Exhibit 1 to the Agreement by substituting for the existing addendum to Exhibit 1 the Addendum to Exhibit 1 in the form attached hereto to reflect the issuance of the Series H Preferred Units to the General Partner.   2.             Except as explicitly modified by this Amendment, all of the provisions of the Agreement are hereby ratified and confirmed, and shall remain   3.             This Amendment shall take effect upon the contribution of the net proceeds of the Offering to the Partnership by the General Partner, and in the event such contribution is not made, this Amendment shall be of no force or effect.   2   (SIGNATURE PAGE FOLLOWS)   3   In witness whereof, the General Partner has executed this Amendment as of the       CORPORATE OFFICE PROPERTIES TRUST,   a Maryland Real Estate Investment Trust         By:   /s/ Roger A. Waesche, Jr.   Name:  Roger A. Waesche, Jr.   Title: Senior Vice President   4   Exhibit 1 Addendum     Series Preferred Units   Preferred Limited Partner   No. of Preferred Units   Liquidation Preference Per Preferred Unit   Priority Percentage Return *   Priority   Conversion Factor   Conversion Commencement Date                                   B   General Partner   1,250,000   $ 25   2.50 % Senior   None   N/A   D   General Partner   544,000   $ 25   1.00 % Senior     **   ** E   General Partner   1,150,000   $ 25   2.5625 % Senior   None   N/A   F   General Partner   1,425,000   $ 25   10.25 % Senior   None   N/A   G   General Partner   2,200,000   $ 25   8 % Senior   None   N/A   H   General Partner   2,000,000   $ 25   7.5 % Senior   None   N/A     *              Priority Return Percentage is expressed as a percentage of the Liquidation Preference per Distribution Period.  See the Agreement for the definitions of “Priority Return Percentage,” “Liquidation Preference” and “Distribution Period.”   **           With respect to any series of Preferred Units issued to the General Partner pursuant to Section 4.2(B) of the Agreement, the Conversion Commencement Date and the applicable Conversion Factor shall correspond to the conversion commencement date and conversion factor of the related issuance of securities by the General Partner as provided in Section 4.2(B) of the Agreement.  See Section 9.8(A)(1) of the Agreement.  

Title: What crime, if any, would a potentially deadly internet hoax be? Question:Recently, [this image](http://i2.kym-cdn.com/photos/images/newsfeed/001/118/462/1ab.jpg) has been circulating the web and people have gotten rather understandably upset over it. People have been posting similar dangerous "tips" (e.g. mix ammonia and bleach for a super-effective cleaning solution, other similar ideas likely to result in death, chemical burns, explosions, or at least considerable property damage) on the internet for a while, though I can't recall others getting this much attention. I would strongly assume this would be illegal in some way, but what exactly would someone be charged with? Would it matter if they created it or just reposted it? Would somebody have to actually be harmed first, or would there just need to be a reasonable possibility? If it was created and posted somewhere where it would obviously be a joke (e.g. 4chan or similar) but subsequently spread to other areas where people might take it seriously, who in that process broke the law, and which laws? I live in PA, but I would be interested in hearing from just about any US jurisdiction. Answer #1: In addition to whatever criminal charges might exist, anybody injured by this would have a case to sue the creator and possibly the knowing disseminators, for purposefully attempting to get others injured and killed.

Title: Girl lied about age to me on POF, parents called me. Lawyer up? Question:no cut corners or BS. heres what happened: im 21. met girl on POF about a week ago. we exchanged numbers. talked, mostly just jokes and shit, fake cutting on her (flirting). she told me she was 17 but turned 18 this past saturday (it was in 4-5 days shed be turning "18"). she sent me fully clothed pictures, not provactive at all. no sexual talk whatsoever. til saturday, her " 18th birthday". woke up to a video of her touching her self. i never even said anything to her. just woke up and see she sent a video. i replied "you know you dont have to do that to yourself right" to which she replied she was going to celebrate her bday then celebrate with me later. i said cool or something. nothing more about the video. so. today sunday. get a call from her phone, its her dad apparently she just turned SEVENTEEN. i have screenshots proving she told me she was turning 18. hes saying his wife saw the video, she wants to press charges and that from the moment i knew she was 17 and that was enough to convict me of something. also, because shes *actually* 17, that i can / will be convicted of child pronography. we never hung out, if that means anything. i think this is all fucked up to be honest. this guy said where i worked, all of my families addresses and more. should i lawyer up? i feel like i didnt really do anything wrong since nothing sexual at all was said and if what i said was even sexual at all to that video. i just woke up to it and said what i put in quotes above. Answer #1: I've been keeping track and this question is asked on average every 27 hours. It's a scam.Answer #2: Scam. Delete and block the number as well as any number her 'father' or the 'sheriff' calls on. Don't give them any money or talk with them in any way.

SEAGULL ENERGY CORPORATION 1990 STOCK OPTION PLAN I. PURPOSE OF THE PLAN The SEAGULL ENERGY CORPORATION 1990 STOCK OPTION PLAN (the "Plan") is intended to provide a means whereby certain employees of SEAGULL ENERGY CORPORATION, a Texas corporation (the "Company"), and its subsidiaries may develop a sense of proprietorship and personal involvement in the development and financial success of the Company, and to encourage them to remain with and devote their best efforts to the business of the Company, thereby advancing the interests of the Company and its shareholders. Accordingly, the Company may grant to certain employees the option ("Option") to purchase shares of the common stock of the Company ("Stock"), as hereinafter set forth. Options granted under the Plan may be either incentive stock options, within the meaning of section 422A(b) of the Internal Revenue Code of 1986, as amended (the "Code"), ("Incentive Stock Options") or options which do not constitute Incentive Stock Options. II. ADMINISTRATION The Plan shall be administered by the Compensation Committee (the "Committee") of the Board of Directors of the Company (the "Board"). Members of the Committee shall be persons that are "disinterested persons" within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the "1934 Act"). The Committee shall have sole authority to select the individuals who are to be granted Options from among those eligible hereunder and to establish the number of shares which may be issued under each Option. The Committee is authorized to interpret the Plan and may from time to time adopt such rules and regulations, consistent with the provisions of the Plan, as it may deem advisable to carry out the Plan. All decisions made by the Committee in selecting the individuals to whom Options shall be granted, in establishing the number of shares which may be issued under each Option and in construing the provisions of the Plan shall be final. III. OPTION AGREEMENTS Each Option shall be evidenced by an Option Agreement and shall contain such terms and conditions, and may be exercisable for such periods, as may be approved by the Committee. The terms and conditions of the respective Option Agreements need not be identical. Specifically, an Option Agreement may provide for the surrender of the right to purchase shares under the Option in return for a payment in cash or shares of Stock or a combination of cash and shares of Stock equal in value to the excess of the fair mar- ket value of the shares with respect to which the right to purchase is surrendered over the option price therefor ("Stock Appreciation Rights"), on such terms and conditions as the Committee in its sole discretion may prescribe; provided, that with respect to Stock Appreciation Rights granted to employees who are subject to Section 16 of the 1934 Act, except as provided in Subparagraph VIII(c) hereof, the Committee shall retain final authority (i) to determine whether an optionee shall be permitted, or (ii) to approve an election by an optionee, to receive cash in full or partial settlement of Stock Appreciation Rights. Moreover, an Option Agreement may provide for the payment of the option price, in whole or in part, by the delivery of a number of shares of Stock (plus cash if necessary) having a fair market value equal to such option price. Finally, in the case of an option which does not constitute an Incentive Stock Option, an Option Agreement may provide for payment of the amount of federal or state income tax withholding required with respect to the exercise of such Option by permitting an Optionee to surrender shares of Stock or authorize the Company to withhold from shares of Stock acquired upon exercise of such Option shares of Stock equal in value to such withholding. For all purposes under the Plan, the fair market value of a share of Stock on a particular date shall be equal to the closing price of the Stock on the New York Stock Exchange Composite Tape on that date, or if no prices are reported on that date, on the last preceding date on which such prices of the Stock are so reported. Each Option and all rights granted thereunder shall not be transferable other than by will or the laws of descent and distribution, and shall be exercisable during the optionee's lifetime only by the optionee or the optionee's guardian or legal representative. IV. ELIGIBILITY OF OPTIONEE Options may be granted only to individuals who are key employees (including officers and directors who are also key employees) of the Company or any parent or subsidiary corporation (as defined in section 425 of the Code) of the Company at the time the Option is granted. Options may be granted to the same individual on more than one occasion. No Incentive Stock Option shall be granted to an individual if, at the time the Option is granted, such individual owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of its parent or subsidiary corporation, within the meaning of section 422A(b)(6) of the Code, unless (i) at the time such Option is granted the option price is at least 110% of the fair market value of the Stock subject to the Option and (ii) such Option by its terms is not exercisable after the expiration of five years from the date of grant. To the extent that the aggregate fair market value (determined at the time the respective Incentive Stock Option is granted) of stock with respect to which Incentive Stock Options granted after 1986 are exercisable for the first time by an individual during any calendar year under all incentive stock option plans of the Company and its parent and subsidiary corporations exceeds $100,000, such Incentive Stock Options shall be treated as options which do not constitute Incentive Stock Options. The Committee shall determine, in accordance with applicable provisions of the Code, Treasury Regulations and other administrative pronouncements, which of an optionee's Incentive Stock Options will not constitute Incentive Stock Options because of such -2- limitation and shall notify the optionee of such determination as soon as practicable after such determination. V. SHARES SUBJECT TO THE PLAN The aggregate number of shares which may be issued under Options granted under the Plan shall not exceed 500,000 shares of Stock. Such shares may consist of authorized but unissued shares of Stock or previously issued shares of Stock reacquired by the Company. Any of such shares which remain unissued and which are not subject to outstanding Options at the termination of the Plan shall cease to be subject to the Plan, but, until termination of the Plan, the Company shall at all times make available a sufficient number of shares to meet the requirements of the Plan. Should any Option hereunder expire or terminate prior to its exercise in full, the shares theretofore subject to such Option may again be subject to an Option granted under the Plan. The aggregate number of shares which may be issued under the Plan shall be subject to adjustment in the same manner as provided in Paragraph VIII hereof with respect to shares of Stock subject to Options then outstanding. Exercise of an Option in any manner, including an exercise involving a Stock Appreciation Right, shall result in a decrease in the number of shares of Stock which may thereafter be available, both for purposes of the Plan and for sale to any one individual, by the number of shares as to which the Option is exercised. Separate stock certificates shall be issued by the Company for those shares acquired pursuant to the exercise of an Incentive Stock Option and for those shares acquired pursuant to the exercise of any Option which does not constitute an Incentive Stock Option. VI. OPTION PRICE The purchase price of Stock issued under each Option shall be determined by the Committee, but in the case of an Incentive Stock Option, such purchase price shall not be less than the fair market value of Stock subject to the Option on the date the Option is granted. VII. TERM OF PLAN The Plan shall be effective upon the date of its adoption by the Board, provided the Plan is approved by the shareholders of the Company within twelve months thereafter. Except with respect to Options then outstanding, if not sooner terminated under the provisions of Paragraph IX, the Plan shall terminate upon and no further Options shall be granted after the expiration of ten years from the date of its adoption by the Board. VIII. RECAPITALIZATION OR REORGANIZATION (a) The existence of the Plan and the Options granted hereunder shall not affect in any way the right or power of the Board or the shareholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Com- E:\SEA322\STOCK\1990.SOP -3- pany's capital structure or its business, any merger or consolidation of the Company, any issue of debt or equity securities ahead of or affecting Stock or the rights thereof, the dissolution or liquidation of the Company or any sale, lease, exchange or other disposition of all or any part of its assets or business or any other corporate act or proceeding. (b) The shares with respect to which Options may be granted are shares of Stock as presently constituted, but if, and whenever, prior to the expiration of an Option theretofore granted, the Company shall effect a subdivision or consolidation of shares of Stock or the payment of a stock dividend on Stock without receipt of consideration by the Company, the number of shares of Stock with respect to which such Option may thereafter be exercised (i) in the event of an increase in the number of outstanding shares shall be proportionately increased, and the purchase price per share shall be proportionately reduced, and (ii) in the event of a reduction in the number of outstanding shares shall be proportionately reduced, and the purchase price per share shall be proportionately increased. (c) If the Company recapitalizes or otherwise changes its capital structure, thereafter upon any exercise of an Option theretofore granted the optionee shall be entitled to purchase under such Option, in lieu of the number of shares of Stock as to which such Option shall then be exercisable, the number and class of shares of stock and securities to which the optionee would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the optionee had been the holder of record of the number of shares of Stock as to which such Option is then exercisable. If (i) the Company shall not be the surviving entity in any merger or consolidation (or survives only as a subsidiary of an entity other than a previously wholly-owned subsidiary of the Company), (ii) the Company sells, leases or exchanges or agrees to sell, lease or exchange all or substantially all of its assets to any other person or entity (other than a wholly-owned subsidiary of the Company), (iii) the Company is to be dissolved and liquidated, (iv) any person or entity, including a "group" as contemplated by Section 13(d)(3) of the 1934 Act, acquires or gains ownership or control (including, without limitation, power to vote) of more than 40% of the outstanding shares of Stock, or (v) as a result of or in connection with a contested election of directors, the persons who were directors of the Company before such election shall cease to constitute a majority of the Board (each such event is referred to herein as a "Corporate Change"), then effective as of a date (selected by the Committee) within (a) ten days after the approval by the shareholders of the Company of such merger, consolidation, sale, lease or exchange of assets or dissolution or such election of directors or (b) thirty days of such change of control, the Committee, acting in its sole discretion without the consent or approval of any optionee, shall effect one or more of the following alternatives, which may vary among individual optionees: (1) accelerate the time at which Options then outstanding may be exercised so that such Options may be exercised in full for a limited period of time on or before a specified date (before or after such Corporate Change) fixed by the Committee, after which specified date all unexercised Options and all rights of optionees thereunder shall terminate, (2) require the mandatory surrender to the Company by selected optionees of some or all of the outstanding Options held by such optionees (irrespective of whether such Options are then exercis- -4- able under the provisions of the Plan) as of a date, before or after such Corporate Change, specified by the Committee, in which event the Committee shall thereupon cancel such Options and pay to each optionee an amount of cash per share equal to the excess of the amount calculated in Subparagraph (d) below (the "Change of Control Value") of the shares subject to such Option over the exercise price(s) under such Options for such shares, (3) make such adjustments to Options then outstanding as the Committee deems appropriate to reflect such Corporate Change (provided, however, that the Committee may determine in its sole discretion that no adjustment is necessary to Options then outstanding) or (4) provide that thereafter upon any exercise of an Option theretofore granted the optionee shall be entitled to purchase under such Option, in lieu of the number of shares of Stock as to which such Option shall then be exercisable, the number and class of shares of stock or other securities or property to which the optionee would have been entitled pursuant to the terms of the agreement of merger, consolidation or sale of assets and dissolution if, immediately prior to such merger, consolidation or sale of assets and dissolution the optionee had been the holder of record of the number of shares of Stock as to which such Option is then exercisable. (d) For the purposes of clause (2) in Subparagraph (c) above, the "Change of Control Value" shall equal the amount determined in clause (i), (ii) or (iii), whichever is applicable, as follows: (i) the per share price offered to shareholders of the Company in any such merger, consolidation, sale of assets or dissolution transaction, (ii) the price per share offered to shareholders of the Company in any tender offer or exchange offer whereby a Corporate Change takes place, or (iii) if such Corporate Change occurs other than pursuant to a tender or exchange offer, the fair market value per share of the shares into which such Options being surrendered are exercisable, as determined by the Committee as of the date determined by the Committee to be the date of cancellation and surrender of such Options. In the event that the consideration offered to shareholders of the Company in any transaction described in this Subparagraph (d) or Subparagraph (c) above consists of anything other than cash, the Committee shall determine the fair cash equivalent of the portion of the consideration offered which is other than cash. (e) Any adjustment provided for in Subparagraphs (b) or (c) above shall be subject to any required shareholder action. (f) Except as hereinbefore expressly provided, the issuance by the Company of shares of stock of any class or securities convertible into shares of stock of any class, for cash, property, labor or services, upon direct sale, upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, and in any case whether or not for fair value, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Stock subject to Options theretofore granted or the purchase price per share. -5- IX. AMENDMENT OR TERMINATION OF THE PLAN The Board in its discretion may terminate the Plan at any time with respect to any shares for which Options have not theretofore been granted. The Board shall have the right to alter or amend the Plan or any part thereof from time to time; provided, that no change in any Option theretofore granted may be made which would impair the rights of the optionee without the consent of such optionee; and provided, further, that the Board may not make any alteration or amendment which would materially increase the benefits accruing to participants under the Plan, increase the aggregate number of shares which may be issued pursuant to the provisions of the Plan, change the class of individuals eligible to receive Options under the Plan or extend the term of the Plan, without the approval of the shareholders of the Company. -6- NONSTATUTORY STOCK OPTION AGREEMENT AGREEMENT made as of the ______ day of ________________, 19___, between SEAGULL ENERGY CORPORATION, a Texas corporation (the "Company") and ____________________________ ("Employee"). To carry out the purposes of the SEAGULL ENERGY CORPORATION 1990 STOCK OPTION PLAN (the "Plan"), by affording Employee the opportunity to purchase shares of common stock of the Company ("Stock"), and in consideration of the mutual agreements and other matters set forth herein and in the Plan, the Company and Employee hereby agree as follows: 1. GRANT OF OPTION. The Company hereby irrevocably grants to Employee the right and option ("Option") to purchase all or any part of an aggregate of ______ shares of Stock, on the terms and conditions set forth herein and in the Plan, which Plan is incorporated herein by reference as a part of this Agreement. This Option shall not be treated as an incentive stock option within the meaning of section 422A(b) of the Internal Revenue Code of 1986, as amended (the "Code"). 2. PURCHASE PRICE. The purchase price of Stock purchased pursuant to the exercise of this Option shall be $_______ per share. For all purposes of this Agreement, fair market value of Stock shall be determined in accordance with the provisions of the Plan. 3. EXERCISE OF OPTION. Subject to the earlier expiration of this Option as herein provided, this Option may be exercised, by written notice to the Company at its principal executive office addressed to the attention of its Corporate Secretary, at any time and from time to time after the date of grant hereof, but, except as otherwise provided below, this Option shall not be exercisable for more than a percentage of the aggregate number of shares offered by this Option determined by the number of full years from the date of grant hereof to the date of such exercise, in accordance with the following schedule: PERCENTAGE OF SHARES THAT NUMBER OF FULL YEARS MAY BE PURCHASED Less than 1 year ..................... 0% 5 years or more ...................... 100% Notwithstanding anything in this agreement to the contrary, the Committee appointed by the Board of Directors to the Company to administer the Plan (the "Committee") in its sole discretion may waive the foregoing schedule of vesting and permit Employee to exercise the Option in such amount or amounts and at such time or times as the Committee shall determine. This Option is not transferable by Employee otherwise than by will or the laws of descent and distribution, and may be exercised only by Employee during Employee's lifetime and while Employee remains an employee of the Company, except that: (a) If Employee's employment with the Company terminates for cause or vol- untarily by Employee (other than by reason of normal retirement at or after age sixty-five) without the written consent of the Company, this Option shall immediately terminate and shall no longer be exercisable. For purposes of this Agreement, "cause" shall mean Employee's gross negligence or willful misconduct in performance of the duties of Em- ployee's employment, or Employee's final conviction of a felony or of a misdemeanor involving moral turpitude. (b) If Employee's employment with the Company terminates for any reason other than death or as described in (a) above, this Option may be ex- ercised by Employee at any time during the period of three months fol- lowing such termination, or by Employee's estate (or the person who ac- quires this Option by will or the laws of descent and distribution or otherwise by reason of the death of Employee) during a period of one year following Employee's death if Employee dies during such three- month period, but in each case only as to the number of shares Employee was entitled to purchase hereunder as of the date Employee's employment so terminates unless such termination was by reason of retirement (in- cluding normal retirement at or after age sixty-five or early retire- ment with the prior written consent of the Company) or total and perma- nent disability in either which case this Option shall be exercisable in full. (c) If Employee dies while in the employ of the Company, Employee's estate, or the person who acquires this Option by will or the laws of descent and distribution or otherwise by reason of the death of Employee, may exercise this Option in full at any time during the period of one year following the date of Employee's death. This Option shall not be exercisable in any event after the expiration of ten years from the date of grant hereof. The purchase price of shares as to which this Option is exercised shall be paid in full at the time of exercise (a) in cash (including check, bank draft or money order payable to the order of the Company), (b) by delivering to the Company shares of Stock having a fair market value equal to the purchase price, or (c) any com- -2- bination of cash or Stock. No fraction of a share of Stock shall be issued by the Company upon exercise of an Option or accepted by the Company in payment of the purchase price thereof; rather, Employee shall provide a cash payment for such amount as is necessary to effect the issuance and acceptance of only whole shares of Stock. Unless and until a certificate or certificates representing such shares shall have been issued by the Company to Employee, Employee (or the person permitted to exercise this Option in the event of Employee's death) shall not be or have any of the rights or privileges of a shareholder of the Company with respect to shares acquirable upon an exercise of this Option. 4. WITHHOLDING OF TAX. To the extent that the exercise of this Option or the disposition of shares of Stock acquired by exercise of this Option results in compensation income to Employee for federal or state income tax purposes, except as hereinafter provided, Employee shall deliver to the Company at the time of such exercise or disposition such amount of money as the Company may require to meet its obligation under applicable tax laws or regulations. Employee may elect with respect to this Option to surrender or authorize the Company to withhold shares of Stock (valued at their fair market value on the date of surrender or withholding of such shares) in satisfaction of any such withholding obligation (a "Stock Surrender Withholding Election"); provided, however, that: (a) Any Stock Surrender Withholding Election shall be made by written notice to the Company and thereafter shall be irrevocable by Employee; (b) Any Stock Surrender Withholding Election shall be subject to disapproval by the Committee at any time; (c) Any Stock Surrender Withholding Election shall be made prior to the date Employee recognizes income with respect to the exercise of this Option (the "Tax Date"); and (d) If Employee is an "officer" of the Company or other person subject to section 16(b)of the Securities Exchange Act of 1934, as amended, or any successor law and wishes to make a Stock Surrender Withholding Election, such person shall make any Stock Surrender Withholding Election: (i) more than six months after the date of grant of this Option, except that this limitation shall not apply in the event of death or disability of Employee prior to the expiration of the six-month period; and (ii) either at least six months prior to the Tax Date or during the period beginning on the third business day following the date of release for publication of the Company's summary statement of sales and earnings for a quarter or fiscal year and ending on the twelfth business day following such date. -3- (e) When the Tax Date falls after the exercise of this Option and Employee makes a Stock Surrender Withholding Election, the full number of shares of Stock for which this Option is being exercised shall be issued, but Employee shall be unconditionally obligated to deliver to the Company on the Tax Date a number of shares of Stock having a value equal to any tax required to be withheld. If Employee fails to deliver such money or make a Stock Surrender Withholding Election pursuant to this Paragraph, the Company is authorized to withhold from any cash or Stock remuneration then or thereafter payable to Employee any tax required to be withheld. 5. STATUS OF STOCK. The Company intends to register for issue under the Securities Act of 1933, as amended (the "Act") the shares of Stock acquirable upon exercise of this Option, and to keep such registration effective throughout the period this Option is exercisable. In the absence of such effective registration or an available exemption from registration under the Act, issuance of shares of Stock acquirable upon exercise of this Option will be delayed until registration of such shares is effective or an exemption from registration under the Act is available. The Company intends to use its best efforts to ensure that no such delay will occur. In the event exemption from registration under the Act is available upon an exercise of this Option, Employee (or the person permitted to exercise this Option in the event of Employee's death or incapacity), if requested by the Company to do so, will execute and deliver to the Company in writing an agreement containing such provisions as the Company may require to assure compliance with applicable securities laws. Employee agrees that the shares of Stock which Employee may acquire by exercising this Option will not be sold or otherwise disposed of in any manner which would constitute a violation of any applicable securities laws, whether federal or state. Employee also agrees (i) that the certificates representing the shares of Stock purchased under this Option may bear such legend or legends securities laws, (ii) that the Company may refuse to register the transfer of the shares of Stock purchased under this Option on the stock transfer records of the Company if such proposed transfer would in the opinion of counsel satisfactory to the Company constitute a violation of any applicable securities law and (iii) that the Company may give related instructions to its transfer agent, if any, to stop registration of the transfer of the shares of Stock purchased under this Option. 6. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, Employee shall be considered to be in the employment of the Company as long as Employee remains an employee of either the Company, a parent or subsidiary corporation (as defined in section 425 of the Code) of the Company, or a corporation or a parent or subsidiary of such corporation assuming or substituting a new option for this Option. Any question as to whether and when there has been a termination of such employment, and the cause -4- of such termination, shall be determined by the Committee, and its determination shall be final. 7. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of any successors to the Company and all persons lawfully claiming under Employee. 8. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas. executed by its officer thereunto duly authorized, and Employee has executed this Agreement, all as of the day and year first above written. SEAGULL ENERGY CORPORATION By: ______________________________________ Employee -5- AMENDMENT TO STOCK OPTION AGREEMENT(S) WHEREAS, SEAGULL ENERGY CORPORATION (the "Company") has previously adopted the SEAGULL ENERGY CORPORATION 1981 STOCK OPTION PLAN, the SEAGULL ENERGY CORPORATION 1981 STOCK OPTION PLAN (RESTATED), the SEAGULL ENERGY CORPORATION 1983 STOCK OPTION PLAN, the SEAGULL ENERGY CORPORATION 1983 STOCK OPTION PLAN (RESTATED), the SEAGULL ENERGY CORPORATION 1986 STOCK OPTION PLAN, the SEAGULL ENERGY CORPORATION 1986 STOCK OPTION PLAN (RESTATED), the SEAGULL ENERGY CORPORATION 1990 STOCK OPTION PLAN and the SEAGULL ENERGY CORPORATION 1993 STOCK OPTION PLAN (collectively, the "Option Plans"); and WHEREAS, certain nonstatutory stock options ("NSOs") and incentive stock options (collectively, "Options") have heretofore been granted to the optionee, an employee of the Company other than an individual subject to Section 16 of the Securities Exchange Act of 1934, as amended (the "Employee"), that are currently outstanding under the Option Plans, each of such Options being listed on the schedule attached hereto and evidenced by a Nonstatutory Stock Option Agreement or an Incentive Stock Option Agreement (collectively, the "Agreements"); and WHEREAS, the Employee's employment with the Company will be terminated as the result of the Company's workforce reduction, geographic consolidation and segment disposition announced April 4, 1995, and the Company desires to amend the Agreements in certain respects; NOW, THEREFORE, the Agreements shall be amended as follows, effective as of _______________ (Employee's employment termination date): 1. The vesting schedule contained in the Agreements shall be waived and all Options outstanding under such Agreements shall be exercisable in full. 2. Notwithstanding any provision in the Agreements to the contrary, with respect to any NSOs (or portions thereof) that were exercisable under the Agreements as of _______________ (day before Employee's employment termination date)("Vested NSOs"), such Vested NSOs shall continue to be exercisable by the Employee, his estate or the person who acquires such Vested NSOs by will or the laws of descent and distribution, at any time on or before December 31, 1996. 3. As amended hereby, the Agreements are specifically ratified and reaffirmed. IN WITNESS WHEREOF, the Company has caused this amendment to be duly executed by one of its officers thereunto duly authorized, and the Employee has executed this amendment, effective as of ________________ (Employee's employment termination date). SEAGULL ENERGY CORPORATION By _______________________________________ Employee

Exhibit 31.2 ADAMS RESOURCES & ENERGY, INC. CERTIFICATION PURSUANT TO 17 CFR 240.13a-14(a)/15d-14(a) AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 I, Richard B. Abshire, certify that: 1. I have reviewed this annual report on Form 10-K of Adams Resources & Energy, Inc. (the “registrant”); 2. Based on my knowledge, this annual 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 annual report; 3. Based on my knowledge, the financial statements, and other financial information included in this annual 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 annual 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)) and internal control over financial reporting (as defined in exchange act rules 13a-15(f) and 15d-15(f)) for the registrant and we have:, as for the registrant and we 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 annual 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 and procedures controls 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 (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f), 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. 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 registrant's board of directors (or persons performing the equivalent functions): (a) all significant deficiencies in the design or operation of internal controls 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 controls. Date:March 23, 2010 /s/ Richard B. Abshire Richard B. Abshire Chief Financial Officer

EXHIBIT 99.2 JOINT FILING AND SOLICITATION AGREEMENT This Joint Filing and Solicitation Agreement (this “Agreement”) dated September 8, 2010 is entered into by and among David Polonitza, Richard Polonitza, Greta Polonitza, Kirk Anderson, Paul W. Kim, Wayne P. Jones, Rahul Pagidipati, Sidd Pagidipati, Dr.

Exhibit 10.37 INVESTMENT ADVISOR AGREEMENT This INVESTMENT ADVISOR AGREEMENT (the “Agreement”) is effective as of October 22, 2013 by and between NORTHERN TRUST INVESTMENTS, INC., an Illinois banking corporation, (“NTI”), and Aristotle Capital Management, LLC (the “Advisor”). WHEREAS the American Bar Association Members Retirement Trust and the American Bar Association Members Pooled Trust for Retirement Plans (collectively referred to as the “Trusts”), for which The Northern Trust Company, the affiliate of NTI, acts as trustee, are maintained pursuant to agreements between the ABA Retirement Funds (“ABRF”) and The Northern Trust Company for the purpose of funding the American Bar Association Members Retirement Plan, the American Bar Association Members Defined Benefit Pension Plan (together, the “ABA Members Plans”) and other employee benefit plans, as adopted by eligible individuals, organizations, partnerships, corporations or associations (each such individual employee benefit plan being referred to as a “Plan” and collectively as the “Plans”), which Plans must meet the requirements for qualification under Section 401 of the Internal Revenue Code of 1986, as amended and in effect from time to time (the “Code”); WHEREAS, certain assets of the Trusts are deposited in a collective investment fund, known as the Large Cap Equity Fund (the “Fund”), established under the American Bar Association Members/NTI Collective Trust (the “ABA Members Collective Trust”) under which NTI is trustee (the “Trustee”), pursuant to the Declaration of Trust dated July 1, 2010, as amended and in effect from time to time (the “Declaration of Trust”); WHEREAS, the Fund is established under a group trust maintained by the Trustee and is exempt from tax pursuant to Revenue Ruling 81-100; WHEREAS, the Trustee desires to retain the Advisor to act as its investment advisor to assist the Trustee in managing such assets of the Fund as the Trustee may designate from time to time in writing to the Advisor (the “Subaccount”) by making recommendations to the Trustee with respect to the investment and reinvestment of the assets in the Subaccount; and WHEREAS the parties desire to set forth, among other things, the duties, terms and conditions under which the Advisor will carry out such advisory functions and the Trustee will perform certain of its functions with respect to managing and administering the Subaccount and the Fund; in this Agreement, it is agreed as follows: 1. Appointment of the Advisor. The Advisor is hereby appointed and employed as investment advisor to the Trustee to assist the Trustee in its management of such assets of the Fund as are held in the Subaccount from time to time. The Advisor shall provide investment advisory and certain other related services to or on behalf of the Trustee, all in accordance with the terms and conditions of this Agreement. 2. Acceptance by the Advisor. The Advisor hereby accepts such appointment and employment and acknowledges that, (a) with respect to the assets in the Subaccount, it is a fiduciary, as defined in the Employee Retirement Income Security Act of 1974, as amended and in effect from time to time (“ERISA”), with respect to the Trusts and the Plans and (b) no person associated with the Advisor is a trustee or administrator of, or an employer of anyone covered by, any Plan. The Advisor represents that it is registered, or exempt from registration, under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and that it is in the business of acting as a fiduciary with respect to assets of various retirement plans and trusts. The Advisor agrees and covenants that it will notify the Trustee within ten (10) business days of (v) any change of its status under the Advisers Act, (w) the receipt of formal notice of the commencement of any proceeding by any governmental agency to take any action which would change its status under the Advisers Act, (x) notice by any governmental agency of the intent to place material limitations on the activities of the Advisor, (y) notice by any governmental agency that it intends to begin an investigation of the Advisor that is outside of the scope of routine investigations that such agency conducts from time to time of businesses engaged in the same or similar activities as the Advisor, or (z) notice by any governmental agency that it has identified an area of non-compliance or other concern in the course of any investigation of the Advisor. Throughout this Agreement, the term “business day” shall mean any day in which the New York Stock Exchange is open for trading and on which the Trustee’s principal office is open for business. 3. Definition of Subaccount. The Subaccount for which the Advisor has been appointed to render investment advice and certain other services is designated as Subaccount A and consists of the assets set forth in Appendix A. The Trustee may change the composition of or the amount of assets included within the Subaccount, by amending Appendix A, after written notice to the Advisor and ABRF. 4. The Advisor’s Services. (a) Investment Process. Subject to the Trustee’s authority for making investments, the Advisor shall invest the assets of the Subaccount in a manner consistent with the provisions of this Agreement and the Investment Guidelines. The manner and procedures for effecting any purchases, sales or investments, for the Subaccount are set forth in Subsection 4(c) below. (b) Compliance With Policies and Other Requirements. In providing its investment advisory and other related services, the Advisor shall act in accordance with the investment objectives and policies for the Fund as set forth in the Fund Declaration pursuant to which the Fund is established and maintained, as the same may be amended from time to time by the Trustee (the “Fund Declaration”), a copy of which is attached hereto as Appendix B, and in accordance with any additional Investment Guidelines that have been established by the Trustee for the Subaccount as set forth in Appendix C, as the same may be amended from time to time by the Trustee. In providing its investment advisory and other related services under this Agreement, the Advisor shall comply with all of the Trustee’s reasonable operating requirements as the same may be communicated in writing by the Trustee to the Advisor from time to time. The Advisor shall comply with any changes to such operating requirements that the Trustee may make   2 from time to time within a period of time reasonably specified by the Trustee (or if none is specified, within a reasonable time period) after notice of such changes is communicated in writing by the Trustee to the Advisor. (c) Investment Procedures. The Advisor shall place orders or otherwise give instructions with respect to the investment of the assets in the Subaccount only in accordance with the provisions of this Subsection 4(c). Except in accordance with the following provisions, the Advisor shall have no authority to place orders for the execution of transactions involving assets of the Subaccount or to give instructions to the Trustee with respect thereto: (i) Approved List. The Advisor shall submit to the Trustee, if required by the Trustee, a list of recommended securities, which are permissible investments for the Subaccount. Such list, when approved by the Trustee, together with such other securities as may be designated by the Trustee as permissible investments for the Subaccount pursuant to this Subsection 4(c)(i), Subsection 4(c)(iii) or the Investment Guidelines, shall be known as the “Approved List”. Until such time as the Trustee specifically requires it to do so, the Advisor shall not be obligated to submit a list of recommended securities for inclusion on the Approved List; pending the submission and approval of such a list, any securities which conform with the requirements of the Investment Guidelines shall be deemed to constitute permissible investments for the Subaccount and to constitute the “Approved List.” (ii) Additions and Deletions. Additions to and deletions from the Approved List may be made from time to time by the Trustee upon the written recommendation by the Advisor, or on the Trustee’s own initiative. In lieu of deleting a security entirely, the Trustee may restrict further purchases of such security or direct a reduction in the holdings thereof. A security once deleted from the Approved List shall not thereafter be added to the Approved List without a new approval by the Trustee. (iii) Notices and Reports. The Advisor shall provide to the Trustee trade date notice of any exercise of the powers granted to it hereunder and in any event shall render to the Trustee, not later than the fifth business day of each month, a written report of all transactions and activities of the Advisor during the preceding month and the status of the Account at the end of such month, in such reasonable detail as the Trustee shall require. (iv) Directions from the Trustee. At any time, and from time to time, the Trustee may direct the Advisor in the exercise of the powers granted to it hereunder. All oral directions will be confirmed in writing to the Advisor by an officer of the Trustee. It shall be the duty of the Advisor to act strictly in accordance with each such direction and, except as provided in the following paragraph, the Advisor shall be under no duty to question any such direction of the Trustee.   3 If the Advisor shall disagree with any direction by the Trustee, or should those employees of Advisor responsible for investing and administering the assets of the Account have actual knowledge of the existence of any circumstances that would be likely to render any such direction illegal or imprudent, it shall so advise the Trustee forthwith. If the Trustee thereafter determines not to rescind such direction, the Advisor shall have no liability for any loss which may result from any action taken by it in accordance with such direction. In all events, however, the Advisor shall be liable for its willful or negligent disregard of the directions of the Trustee; as well as for bad faith, and, except where acting in compliance with a direction of the Trustee as to which the Advisor has taken the action specified in this Subsection 4(c)(iv), for breach of its duties hereunder or failure to use the standards of care set forth in Subsection 4(f). (v) Investment Authority. With respect to any transaction authorized pursuant to the provisions of this Section, the Advisor may take any and all action necessary or desirable to effect such transaction, including but not limited to (A) placing an order with a broker selected in accordance with Subsection 4(h) for the execution of the transaction and (B) issuing to the Trustee such instructions as may be appropriate in connection with the settlement of such transaction. (vi) Valid Notice. “Valid Notice” shall mean written notice or communication, which may be made by facsimile or by such other means as is approved by the Trustee. (d) Custody of Assets and Confirmation of Transactions. To the extent required by applicable law, the Advisor shall direct that all securities purchased and the proceeds from the sale of securities for the Subaccount be delivered to the Trustee, unless otherwise directed by the Trustee. The Advisor shall direct any broker effecting a transaction with respect to the assets of the Subaccount to send the Trustee a duplicate copy of any confirmation of any such transaction, except that the Advisor may make other arrangements (which are reasonably satisfactory to the Trustee) for the Trustee to receive such duplicate confirmations or comparable information acceptable to the Trustee. (e) Voting, Conversion Rights. The Trustee shall retain the responsibility to vote all proxies on behalf of the Fund. The Advisor shall be responsible for exercise of any conversion, tender or subscription rights in connection with any securities or other investments at any time held in the Subaccount. (f) Advisor’s Duty of Care. The Advisor shall discharge its duties with respect to the Subaccount solely in the interests of the participants in the Plans and their beneficiaries with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such   4 matters would use in the conduct of an enterprise of like character and with like aims. The Advisor shall not be responsible for the operation or administration of the Trusts or the Plans. The Advisor shall have no investment advisory responsibilities other than those expressly provided in this Agreement. The Advisor shall discharge its duties in accordance with the requirements of ERISA, other applicable law and this Agreement. (g) Fidelity Bond and Insurance. The Advisor shall maintain for the period of the Agreement a fidelity bond meeting the requirements of Section 412 of ERISA (unless the Trustee acknowledges that the Advisor is exempt from such requirements) and including its officers, directors and employees to the extent so required. The Advisor will provide to ABRF and the Trustee within twenty (20) business days of the effective date of this Agreement copies of all insurance policies (including fiduciary, errors and omissions, and fidelity bonds) that could cover or relate to the Subaccount, the Fund, the Trusts or the Plans, and, upon request by the Trustee or ABRF, a certificate of coverage with respect to any such policies. The Advisor will notify ABRF and the Trustee of any material changes in such policies, which change affects the coverage of the Advisor, within twenty (20) business days after the earlier of when such changes are made or are effective. (h) Brokerage Practices. In placing orders for the purchase and sale of assets of the Subaccount in accordance with Subsection 4(c), the Advisor shall act in accordance with the procedures with regard to brokerage practices for the Subaccount, as described in Appendix D and in a manner that is consistent with ERISA and other applicable law. Unless otherwise specified in writing by the Trustee, the Advisor shall place orders to purchase, sell, or exchange assets in the Account through such brokers as in the Advisor’s reasonable judgment shall offer the best execution of each transaction, provided that (1) the Advisor shall have notified the Trustee in advance of (a) its intention to use such broker in effecting transactions for the Account and (b) the principal terms of any agreement which it may have with such broker, including the range of brokerage fees to be charged by such broker, and (2) any transaction effected through such broker is to be made on a delivery versus payment basis. The Advisor shall not use any broker which has not been specifically approved in advance by the Trustee if the transaction is not to be made on a delivery versus payment basis or if the transaction would otherwise expose the Subaccount to any risk attendant to a failure of such broker. Anything to the contrary herein notwithstanding, the Advisor may not (a) place orders to effect transactions with any affiliated person without the express written consent of the Trustee, (b) pay any commissions from the Subaccount to a broker (i) at the requestion or direction of any client other than the Trustee, (c) without the prior written consent of the Trustee, pay any broker more than its customary brokerage commissions in connection with any transactions or (d) use any broker which is not registered with a governmental entity or a nationally recognized self-regulatory organization such as the Financial Industry Regulatory Authority. The Advisor shall notify the Trustee of the amount of brokerage commissions paid with respect to each transaction at the time it provides trade information with respect to such transaction to the Trustee or its representative.   5 (i) Soft Dollars. The Trustee acknowledges and agrees that, subject to the provisions of Section 28(e) of the Securities Exchange Act of 1934, as amended, and ERISA, the Advisor may effect securities transactions which cause the Account to pay an amount of commission in excess of the amount of commission another broker or dealer would have charged, provided that the Advisor determines in good faith that such amount of commission is reasonable in relation to the value of brokerage and research services provided by the broker or dealer to the Advisor, viewed in terms of either the specific transaction or the Advisor’s overall responsibilities to the accounts for which the Advisor exercises investment discretion. For purposes hereof, the term “research services” shall mean products or services which provide lawful and appropriate assistance to the Advisor’s investment decision-making process. While the Advisor may obtain research services from brokerage commissions charged to the Account that may not directly benefit the Account at that particular time, the Advisor shall endeavor to ensure that, over time, the Account receives the benefit of research services purchased with brokerage commissions charged to the accounts of other clients of the Advisor. The Advisor agrees that the receipt and use of such services will not reduce the Advisor’s customary and normal research activities. The Trustee may require that the Advisor provide it with reports in such form and at such time as may be reasonably required, setting forth the amount of total brokerage business which has been placed by it and the allocation thereof among brokers and dealers and specifically indicating those brokers and dealers which provided research services. The Advisor agrees to follow the CFA Institute Soft Dollar Standards regarding the use and disclosure of soft dollar commissions. (j) Nondisclosure of Information. To the extent necessary for the execution of this Agreement or to satisfy the requirements for disclosure to participants or to meet the requirements of Sections 8 and 9, the Advisor shall keep in strict confidence all information about the financial affairs of the Subaccount. The Advisor may include information about the Subaccount in aggregate information provided by the Advisor as long as the information is not set out separately or in any other manner that would enable a third party to determine the financial affairs of the Subaccount. (k) Advisor’s Potential Conflicts of Interest. The Advisor (and any affiliate thereof) may engage in any other business or act as advisor to or investment manager for any other person, even though it (or any affiliate thereof) or such other person has, or may have, investment policies similar to those followed by the Advisor with regard to the Subaccount. Nothing in this Agreement shall prevent the Advisor (or any affiliate thereof) from buying or selling, or from recommending or directing such other person to buy or sell, at any time, securities of the same kind or class recommended by the Advisor to be purchased or sold for the Subaccount. The Advisor shall be free from any obligation to the Subaccount to recommend any particular investment opportunity which comes to it. However, if the Advisor effects the purchase or sale of the same securities for the Subaccount and other accounts at the same time that orders are open for the Subaccount and the other accounts, the pricing of or proceeds from such securities shall be allocated among the other accounts and the Subaccount in a just and equitable manner.   6 (l) Valuation. At the request of the Trustee from time to time, the Advisor shall provide pricing and valuation information with respect to particular securities it has recommended for the Subaccount if the Trustee has determined that such pricing and valuation information is not otherwise reasonably available to the Trustee through standard pricing services. 5. Representations by the Trustee. The Trustee represents and warrants that (a) there are no restrictions or limitations on the Subaccount’s investments imposed by applicable law other than (i) those set forth in the Declaration of Trust, the Fund Declaration, this Agreement, and Appendix C, as any of the same may be amended from time to time and communicated to the Advisor, (ii) those provided in ERISA and (iii) any other investment restriction or limitation imposed by law or regulation which in the Trustee’s judgment is applicable to the Subaccount and which is communicated by the Trustee to the Advisor; and (b) disclosure to Plan participants contained in the Registration Statement describing the Subaccount is accurate and prepared in accordance with the requirements of Form S-l under the Securities Act of 1933, as amended, except that the Trustee makes no representation or warranty with respect to any disclosure relating to the Advisor or its services with respect to the Subaccount which the Advisor has prepared, approved in writing or has not disapproved within five (5) business days following confirmed transmission by facsimile, acceptable electronic transmission or overnight mail to a person designated by the Advisor to review such disclosure. 6. Liability of the Advisor; Indemnification. (a) Limitation of Liability of the Advisor. The Advisor shall not be liable for any act or omission of any other person or entity exercising a fiduciary responsibility, if such fiduciary responsibility has been allocated to such other person or entity in accordance with this Agreement, the Declaration of Trust, the Fund Declaration, the Plans or the Trusts, except to the extent that the Advisor has itself violated its fiduciary responsibility or its obligations under this Agreement, or except to the extent that applicable law (including ERISA) may expressly provide otherwise. (b) Indemnification. (i) Indemnification of Advisor. To the extent permitted by applicable law, the Trustee agrees to indemnify and hold harmless the Advisor for losses, damages or expenses directly resulting from (A) actions taken by the Advisor in reliance on information provided by the Trustee to the Advisor in accordance with this Agreement, including but not limited to the Trustee’s operating requirements and cash availability information, (B) actions omitted to be taken by the Advisor pursuant to instructions or directions provided by the Trustee and/or (C) valuation of the assets held in the Subaccount, computation of unit values for the Subaccount by the Trustee, or performance data and other financial information provided by the Trustee to Subaccount participants except to the extent that the Advisor has incorrectly reported or failed to report securities transactions in the Subaccount to the Trustee as provided in this Agreement and to the extent that any error in such valuation or computation is due to prices or other information provided by the Advisor.   7 (ii) Indemnification of the Trustee. To the extent permitted by applicable law, the Advisor agrees to indemnify and hold harmless the Trustee for any losses, damages or expenses arising out of or resulting from (A) the performance by the Advisor of its responsibilities under this Agreement, and (B) any disclosure relating to the Advisor or the services provided by the Advisor with respect to the Subaccount which the Advisor has prepared, approved in writing or has not disapproved within five (5) business days following transmission by facsimile, Trustee approved electronic transmission or overnight mail to a person designated by the Advisor to review such disclosure; provided, however, that the Advisor shall not be required to indemnify and hold harmless the Trustee to the extent that such losses, damages or expenses result from an act or omission of the Advisor with respect to which the Advisor not only has used such care, skill, prudence and diligence as a reasonably prudent person acting in like enterprise of like character and with like aims, but also has otherwise acted in accordance with this Agreement and applicable law. (iii) Advisor and Trustee Indemnification Procedures. If the party seeking indemnification is either the Advisor or the Trustee, such party shall promptly notify the indemnifying party of any claim, action, suit or proceeding, or threat thereof, which may result in a claim for indemnification. Upon such notification, the indemnifying party may, at its option, undertake the conduct and cost of defending any such claim, action, suit or proceeding and in such case shall have full control of such defense, including but not limited to selection of counsel (provided that such counsel must be reasonably acceptable to the party being indemnified) and entry into settlement agreements (provided that any such settlement agreement shall require the consent of the party being indemnified, which consent shall not be unreasonably delayed or withheld). The Trustee or the Advisor, as the indemnifying party, shall not be liable for any legal or other expenses incurred in connection with any such defense that were not specifically authorized by it; provided, however, if such indemnifying party fails to undertake and prosecute vigorously the defense of any such claim, action, suit or proceeding, it shall be liable for reasonable legal and other expenses incurred by the party being indemnified. (c) Indemnification of ABRF. (i) To the extent permitted by applicable law, the Advisor agrees to defend, indemnify and hold harmless ABRF, its then present and former officers, directors and advisory directors, the ABA, and its then present and former officers and Board of Governors (the “Indemnified Persons”) against any and all expenses (including attorney’s fees, judgments, fines and penalties, including any civil penalties assessed under Section 502(1) of ERISA) and amounts paid in settlement actually or reasonably incurred in connection with any   8 threatened, pending or current action, suit, proceeding or claim, whether civil, criminal, administrative or otherwise, and the amount of any adverse judgment entered against any of them and any reasonable expenses attendant thereto by reason of any of the Advisor’s acts or omissions in connection with this Agreement provided, however, that in no event shall the indemnification obligations of the Advisor to the indemnified Persons pursuant to this section 6 (c) with respect to any claim exceed the greater of (A) three times the fees paid to the Advisor hereunder for the twelve calendar month period ending immediately before the date on which a claim for indemnification is made hereunder and (B) $1 million, provided, further, however, that the foregoing limitation shall not be applicable if it is such indemnification relates was willful or unlawful. For the above defense, indemnity and hold harmless provision to apply (i) the Indemnified Persons (or ABRF) shall inform the Advisor promptly of any claims threatened or made against any Indemnified Person, (ii) the Indemnified Persons shall cooperate fully with the Advisor in responding to such threatened or actual claims and (iii) any settlement agreement entered into by the Indemnified Persons shall require the written approval of the Advisor, which approval shall not be unreasonably withheld or delayed, and any settlement agreement entered into by the Advisor shall require written approval, within the time frame established by the Advisor, of the Indemnified Persons, which approval shall not be unreasonably withheld. (ii) Right to Counsel. The Indemnified Persons shall have the right to employ counsel in their, its, his or her sole discretion. Such Indemnified Persons shall be responsible for the expenses of such separate counsel except as provided in Subsection 6(c)(iii). The Advisor agrees to cooperate fully with the Indemnified Persons and their separate counsel in responding to such threatened or actual claims. (iii) Separate Counsel. The Advisor agrees to cooperate fully with the Indemnified Persons in responding to such threatened or actual claims. The Indemnified Persons shall have the right to reasonable expenses of separate counsel paid by the Advisor, provided that the Advisor shall not be liable for any legal or other expenses incurred in connection with any such threatened claim or defense that were not specially authorized by the Advisor in writing and provided that the Advisor shall have received a written opinion reasonably acceptable in form and substance to the Advisor of counsel reasonably acceptable to the Advisor (and which counsel shall not represent or otherwise be affiliated with any of the Indemnified Persons) that there exists a material conflict of interest between one or more of the Indemnified Persons and the Advisor in the conduct of the response to a threatened claim or in the conduct of the defense of an actual claim, in which event the Advisor shall be liable for the reasonable legal expenses of each counsel whose appointment is necessary to resolve such conflict; provided, however, the Advisor shall not be responsible for more than one (1) counsel for all Indemnified Persons and selection of such counsel shall be reasonably acceptable to the Advisor.   9 (iv) Payment of Expenses. Expenses (including counsel fees) specifically authorized by the Advisor and actually and reasonably incurred by the Indemnified Persons in defending against or responding to such threatened or actual claims as provided in (i) and (iii) of this Subsection shall be paid as they are incurred. If an Indemnified Person is reasonably required to bring any action to enforce rights or collect monies due under Subsection 6(c) and is successful in such action, the Advisor shall reimburse such Indemnified Person or its subrogee for reasonable fees and expenses incurred in bringing and pursuing such action. (v) Supplemental Rights. Indemnification pursuant to Subsection 6(c) is intended to be supplemental to any other rights to indemnification available to the Indemnified Persons. Nothing herein shall be deemed to diminish or otherwise restrict the Indemnified Persons’ rights to indemnification under law. (vi) Third Party Beneficiaries. The indemnifying party acknowledges that the Indemnified Persons are intended to be third-party beneficiaries of Subsection 6(c). (d) Notwithstanding anything to the contrary contained in this Agreement, in the event that the Trustee in its sole discretion determines that the Advisor has entered into a transaction on behalf of the Fund that is in violation of the Investment Guidelines or has failed to properly follow a direction of the Trustee with respect to investment of the Fund, the Trustee shall direct the Advisor to take such corrective action as the Trustee determines is appropriate and the Advisor shall be solely responsible for reimbursement to the Fund of all costs, expenses, damages and losses incurred in connection with the original transaction and any such corrective action. 7. Transactions Prohibited with Respect to the Advisor. The Advisor, its officers, partners, directors and affiliates, and each of them, shall not, with respect to the Subaccount, (a) as a principal, purchase assets from or sell assets to the Fund, (b) receive any compensation or fees with respect to the Fund, other than the fees provided for in Appendix E, (c) engage in or recommend any transaction involving or affecting the Fund that such person knows or should know is a prohibited transaction under ERISA unless such transaction is exempt under the applicable provisions of ERISA or (d) direct delivery of securities or payment to itself or direct any disposition of securities or cash from the Subaccount except to the Trusts. 8. Reports and Meetings. (a) Monthly Reports. At least monthly the Advisor shall render to the Trustee and ABRF, or their designee, reports concerning its services under this Agreement and the status of the Subaccount, based on the reporting procedures set forth in Appendix F, which is hereby adopted and made a part of this Agreement, including statements of investments in the Subaccount. (b) Meetings. The Advisor will meet with the Trustee and ABRF and with such other persons as the Trustee or ABRA may designate on reasonable notice and at reasonable times and locations, to discuss general economic conditions, Subaccount performance, investment strategy and other matters relating to the Subaccount.   10 (c) Reports Prior to Termination. On each day during the period ten (10) business days prior to the effective date of the Advisor’s resignation or its removal under this Agreement by the Trustee (the “Termination Date”), or on each day of such shorter period after which the Advisor has received notice of its removal, the Advisor shall render to the Trustee and ABRF, or their designee, a report of the current status of the Subaccount based on the procedures set forth in Appendix F, including a statement of investments in the Subaccount and on the day immediately following the Termination Date, such report shall be rendered in final form with respect to the status of the Subaccount, including a statement of investments therein, as of the close of business on the Termination Date. (d) Additional Reports. The Advisor shall furnish to the Trustee and ABRF such additional reports and information as may be reasonably requested by the Trustee or ABRF. 9. Accounting. The Advisor shall keep accurate and detailed records concerning its services under this Agreement, including records of all transactions effected and recommendations made during its performance of this Agreement, and all such records shall be open to inspection at all reasonable times by the Trustee and ABRF, or their designee, and by duly authorized representatives of the Secretary of Labor and the Secretary of the Treasury acting pursuant to their authority under ERISA and the Code, respectively, and other appropriate regulatory authorities. 10. Advisor’s Compensation. The amount and manner of payment of fees payable by the Trustee to the Advisor for the Advisor’s services under this Agreement are set forth in Appendix E. The Advisor agrees that if it enters into a fee schedule with any new non-eleemosynary client after the date of this Agreement whose portfolio is advised or managed under the same investment policies and objectives as the Subaccount, and is similarly or smaller sized at its inception, for services which are substantially similar to the services provided under this Agreement and such fee schedule contains fees that are less than the fees set forth in Appendix E, it will offer the same fee schedule to the Trustee, which shall have the right to require the amendment to Appendix E to reflect that lower fee schedule. 11. Removal and Resignation. (a) Removal of the Advisor. Upon written notice to the Advisor, the Advisor may be removed by the Trustee. Any transaction for the Subaccount entered into by the Advisor prior to the notice being received by the Advisor shall be consummated unless the Trustee directs otherwise and the Advisor shall not enter into any transaction for the Subaccount subsequent to the receipt of the notice. (b) Resignation of the Advisor. The Advisor may resign under this Agreement upon sixty (60) days’ prior written notice to the Trustee. The Advisor shall concurrently advise ABRA in writing of such resignation and the effective date thereof.   11 (c) Termination of Obligations. The respective obligations of the Advisor and the Trustee under Section 6 of the Agreement shall survive any such removal or resignation or other termination of this Agreement. 12. Termination, Amendment or Modification. The provisions of this Agreement may not be terminated, changed, modified, altered or amended in any respect except in a writing signed by the parties. 13. Definitions. As used herein the following terms shall have the meanings ascribed to them in the following sections of this Agreement:   Term Defined    Section ABA Members Collective Trust    Introduction ABA Members Plans    Introduction ABRA    Introduction Advisers Act    2 Advisor    Introduction Advisor’s Amendment    4(c)(i) Advisor’s Recommendation    4(c)(ii) Agreement    Introduction Authorized Transaction    4(c)(iii) Broker List    4(c)(i) Business day    2 Code    Introduction Declaration of Trust    Introduction ERISA    2 Fund    Introduction Fund Declaration    4(b) Indemnified Persons    6(c)(i) Plans    Introduction NTI    Introduction Subaccount    Introduction Suggested Response    4(e) Termination Date    8(c) Trustee    Introduction Trustee’s Response    4(c)(ii) Trustee’s Rejection    4(e) Trusts    Introduction Valid Notice    4(c)(v) 14. Governing Law. This Agreement shall be construed and enforced according to the laws of the State of Illinois and, to the extent of any federal preemption, the laws of the United States of America.   12 15. Binding upon Successors. This Agreement shall be binding upon and enforceable by the successors to the parties hereto. 16. Assignment. The Advisor may not assign this Agreement (including for this purpose any assignment within the meaning of the Advisers Act), or any rights or responsibilities hereby created, without the prior written consent of the Trustee, which consent may be withheld by the Trustee in its sole discretion; however, the parties may amend this Agreement from time to time in accordance with Section 12. 17. Notices. Written notices shall be deemed effective with respect to a party upon delivery to such party at the address set forth below or to such other address as may be provided in writing from time to time by such party:   To the Advisor:    Aristotle Capital Management, LLC    11100 Santa Monica Blvd., Suite 1700    Los Angeles, CA 90025    Attention: Steve Borowski    Fax: 310-478-8496 To the Trustee:    Northern Trust Investments, Inc.    50 South LaSalle Street    Chicago, Illinois, 60603    Attention: Tom Benzmiller    Fax: 312-444-4866 18. Oral Communications. Oral communications between the parties to this Agreement shall be effective hereunder only to the extent specifically authorized herein. By its execution of this Agreement, each of the parties hereto acknowledges that the other party may record any such oral communications and consents to any such recording. All oral communications shall be confirmed in writing, except that if an oral communication is recorded such recording shall be controlling and no written confirmation shall be required. 19. Authority. The parties to this Agreement represent, respectively, that they have duly authorized the execution, delivery and performance of this Agreement and that neither such execution and delivery nor the performance of their obligations hereunder conflict with or violate any provision of law, rule or regulation, or any instrument to which either is a party or to which any of their respective properties are subject and that this Agreement is a valid and binding obligation. 20. Authorized Representatives of the Advisor. The Advisor from time to time shall by written notice certify to the Trustee the name of the person or persons authorized to act on behalf of the Advisor. Any person so certified shall be deemed to be the authorized representative of the Advisor. The Advisor shall give written notice to the Trustee when any person so certified ceases to have the authority to act on behalf of the Advisor, but such revocation of authority shall not be valid until the notice is received by the Trustee. The Advisor will notify the Trustee in writing of any significant changes in the officers of the Advisor and any changes in the personnel of the Advisor responsible for investment of the assets of the Subaccount within twenty (20) business days after such change.   13 21. Client Information Security: Pursuant to the Gramm-Leach-Bliley Act, the Advisor agrees to implement reasonable measures that are designed to:     1) Ensure the security and confidentiality of any of Trustee’s consumer customer information in Advisor’s possession or control;     2) Protect against any anticipated threat or hazards to the security or integrity of this information;     3) Protect against unauthorized access to or use of this information that could result in substantial harm or inconvenience to any consumer customer of Trustee; and     4) Ensure the proper disposal of this information. The Advisor also agrees to notify Trustee as soon as possible of any security breach or acquisition of its client’s personal data by an unauthorized person. IN WITNESS WHEREOF, the parties have executed this Agreement effective October 22, 2013.   NORTHERN TRUST INVESTMENTS, INC. By:   /s/ Patrick W. Herrington   Name: Patrick W. Herrington   Title: SVP ARISTOTLE CAPITAL MANAGEMENT LLC By:   /s/ Howard Gleicher   Name: Howard Gleicher   Title: CEO/CIO   14

SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Schedule 13G Under the Securities Exchange Act of 1934 (Amendment No.: 2 )* Name of issuer: Packaging Corp of America Title of Class of Securities:Common Stock CUSIP Number:695156109 Date of Event Which Requires Filing of this Statement: December 31, 2014 Check the appropriate box to designate the rule pursuant to which this Schedule is filed: (X) Rule 13d-1(b) ( ) Rule 13d-1(c) ( ) Rule 13d-1(d) *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). (Continued on the following page(s)) 13G CUSIP No.:695156109 1.NAME OF REPORTING PERSON S.S.

  Exhibit 10(l) RESTRICTED STOCK AWARD AGREEMENT           Pursuant to the provisions of the Pulte Corporation 2000 Stock Incentive Plan for Key Employees (the “Plan”), the employee named in the Grant Acceptance (the “Holder”) has been granted a restricted stock award (the “Award”) of the number of shares of common stock, $.01 par value, of Pulte Homes, Inc., a Michigan corporation (the “Company”) set forth in the Grant Acceptance (the “Shares”), subject to adjustment as provided herein and in the Plan. The Award is subject to the restrictions, terms and conditions set forth below. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Plan. This Agreement, together with the Grant Acceptance, constitute the Restricted Stock Agreement which is made and entered into as of the grant date set forth in the Grant Acceptance (the “Grant Date”).           1. Award Subject to Acceptance of Agreement. The Award shall be null and void unless the Holder shall (a) accept this Agreement in the manner prescribed by the Company and (b) if requested by the Company, execute and return one or more irrevocable stock powers to facilitate the transfer to the Company (or its assignee or nominee) of the Shares subject to the Award if Shares are forfeited pursuant to Section 4 hereof or if required under applicable laws or regulations. As soon as practicable after the Holder has accepted this Agreement in accordance with the procedures prescribed by the Company and, if requested by the Company, such stock power or powers, and returned the same to the Company, the Company shall cause to be issued in the Holder’s name the total number of Shares subject to the Award.           2. Rights as a Stockholder. The Holder shall have the right to vote the Shares subject to the Award and to receive dividends and other distributions thereon unless and until such Shares are forfeited pursuant to Section 4 hereof; provided, however, that a dividend or other distribution with respect to such Shares (including, without limitation, a stock dividend or stock split), other than a regular cash dividend, shall be subject to the same restrictions as the Shares with respect to which such dividend or other distribution was made (and if the Holder shall have received such dividend or other distribution, the Holder shall deliver the same to the Company and shall, if requested by the Company, execute and return one or more irrevocable stock powers related thereto).           3. Custody and Delivery of Shares. The Shares subject to the Award shall be held by the Company or by a custodian in book entry form, with restrictions on the Shares duly noted, until such Award shall have vested pursuant to Section 4 hereof, and as soon thereafter as practicable, subject to Section 5.3 hereof, the vested Shares shall be delivered to the Holder as the Holder shall direct. Alternatively, in the sole discretion of the Company, the Company shall hold a certificate or certificates representing the Shares subject to the Award until such Award shall have vested, in whole or in part, pursuant to Section 4 hereof, and the Company shall as soon thereafter as practicable, subject to Section 5.3 hereof, deliver the certificate or certificates for the vested Shares to the Holder and destroy the stock power or powers relating to the vested Shares delivered by the Holder pursuant to Section 1 hereof. If such stock power or powers also relate to unvested Shares, the Company may require, as a condition precedent to delivery of any certificate pursuant to this Section 3, the execution and delivery to the Company of one or more stock powers relating to such unvested Shares.             4. Vesting.           (a) Except to the extent earlier forfeited or vested pursuant to this Section 4 or in the event of a Change in Control, the Award shall vest on the third anniversary of the Grant Date.           (b) If the Holder’s employment by the Company terminates by reason of retirement with the consent of the Company, or terminates by reason of the Holder’s death or disability, the Award shall become fully vested as of the effective date of the Holder’s termination of employment or the date of death, as the case may be, provided that if such termination of employment is by reason of retirement and the Holder executes a release in connection with such retirement that provides for a period in which such release may be revoked, the Award shall become fully vested upon the expiration of such revocation period if the Holder has not revoked such release and, provided further, that the Award shall not become fully vested if the Holder has revoked such release..           (c) If the Holder’s employment by the Company is terminated by the Company for Cause, the portion of the Award which is not vested as of the effective date of the Holder’s termination of employment shall be forfeited by the Holder and shall be transferred, without payment of any consideration to the Holder, to the Company (or its assignee or nominee).           (d) If the Holder’s employment by the Company terminates for any reason other than a reason specified in Section 4(b) or 4(c) hereof, the portion of the Award which is not vested as of the effective date of the Holder’s termination of employment shall be forfeited by the Holder and shall be transferred, without payment of any consideration to the Holder, to the Company (or its assignee or nominee); provided, however, that the Committee may, in its discretion, make a determination that part or all of such unvested portion of the Award shall become fully vested as of the effective date of the Holder’s termination of employment.           (e) As used herein, “Cause” shall mean a determination by the Company that the Holder has (i) willfully and continuously failed to substantially perform the duties assigned by the Company or a Subsidiary with which the Holder is employed (other than a failure resulting from the Holder’s disability), (ii) willfully engaged in conduct which is demonstrably injurious to the Company or any Subsidiary, monetarily or otherwise, including conduct that, in the reasonable judgment of the Company, does not conform to the standard of the Company’s executives or employees, or (iii) engaged in any act of dishonesty, the commission of a felony or a significant violation of any statutory or common law duty of loyalty to the Company or any Subsidiary.           (f) As used herein, “Change in Control” shall mean:           (i) the acquisition by any individual, entity or group (a “Person”), including any “person” within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”), of beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act, of 40% or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Common Stock”) or (ii) the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors (the “Outstanding Voting Securities”); excluding, however, the following: (A) any acquisition directly from the Company (excluding any acquisition resulting from the exercise of an exercise, conversion or exchange privilege unless the security being so exercised, converted or exchanged was acquired directly from the 2   Company), (B) any acquisition by the Company, (C) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, (D) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (iii) of this Section 4(f) or (E) any acquisition by any one or more of William J. Pulte, his spouse, any trust or other entity established for the benefit of either or both of such persons, or any charitable organization established by either or both of such persons (“Exempt Persons”); provided further, that for purposes of clause (B), if any Person (other than the Company, any one or more Exempt Persons or any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company) shall become the beneficial owner of 40% or more of the Outstanding Common Stock or 40% or more of the Outstanding Voting Securities by reason of an acquisition by the Company, and such Person shall, after such acquisition by the Company, become the beneficial owner of any additional shares of the Outstanding Common Stock or any additional Outstanding Voting Securities and such beneficial ownership is publicly announced, such additional beneficial ownership shall constitute a Change in Control;           (ii) individuals who, as of the date hereof, constitute the Board of Directors of the Company (the “Incumbent Board”) cease for any reason to constitute at least a majority of such Board of Directors; provided that any individual who becomes a director of the Company subsequent to the date hereof whose election, or nomination for election by the Company’s stockholders, was approved by the vote of at least a majority of the directors then comprising the Incumbent Board shall be deemed a member of the Incumbent Board; and provided further, that any individual who was initially elected as a director of the Company as a result of an actual or threatened solicitation by a Person other than the Board of Directors for the purpose of opposing a solicitation by any other Person with respect to the election or removal of directors, or any other actual or threatened solicitation of proxies or consents by or on behalf of any Person other than the Board of Directors shall not be deemed a member of the Incumbent Board;           (iii) the consummation of a reorganization, merger or consolidation or Company (a “Corporate Transaction”); excluding, however, a Corporate Transaction pursuant to which (i) all or substantially all of the individuals or entities who are the beneficial owners, respectively, of the Outstanding Common Stock and the Outstanding Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than 60% of, respectively, the outstanding shares of common stock, and the combined voting power of the outstanding securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or indirectly) in substantially the same Corporate Transaction, of the Outstanding Common Stock and the Outstanding Voting Securities, as the case may be, (ii) no Person (other than: the Company; any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company; the corporation resulting from such Corporate Transaction; and any Person which beneficially owned, immediately prior to such Corporate Transaction, directly or indirectly, 40% or more of the Outstanding Common Stock or the Outstanding Voting Securities, as the case may be) will beneficially own, directly or indirectly, 40% or more of, respectively, the outstanding shares of common stock of the corporation resulting from such Corporate Transaction or the combined voting power of the outstanding securities of such corporation entitled to vote generally in the election of directors and (iii) individuals who were members of the Incumbent 3   Board will constitute at least a majority of the members of the board of directors of the corporation resulting from such Corporate Transaction; or           (iv) the consummation of a plan of complete liquidation or dissolution of the Company.           5. Additional Terms and Conditions of Award.           5.1. Nontransferability of Award. Prior to the vesting of the Shares subject to the Award, such Shares may not be transferred by the Holder other than by will, the laws of descent and distribution or pursuant to beneficiary designation procedures approved by the Company. Except to the extent permitted by the foregoing, such unvested Shares may not be sold, transferred, assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether by operation of law or otherwise) or be subject to execution, attachment or similar process.           5.2. Investment Representation. The Holder hereby represents and covenants that (a) any Shares acquired upon the vesting of the Award will be acquired for investment and not with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), unless such acquisition has been registered under the Securities Act and any applicable state securities law; (b) any subsequent sale of any such Shares shall be made either pursuant to an effective registration statement under the Securities Act and any applicable state securities laws, or pursuant to an exemption from registration under the Securities Act and such state securities laws; and (c) if requested by the Company, the Holder shall submit a written statement, in form satisfactory to the Company, to the effect that such representation (x) is true and correct as of the date of acquisition of any Shares hereunder or (y) is true and correct as of the date of any sale of any such Shares, as applicable. As a further condition precedent to the delivery to the Holder of any Shares subject to the Award, the Holder shall comply with all regulations and requirements of any regulatory authority having control of or supervision over the issuance of the Shares and, in connection therewith, shall execute any documents which the Board of Directors or the Committee shall in its sole discretion deem necessary or advisable.           5.3. Withholding Taxes. (a) As a condition precedent to the delivery to the Holder of any Shares subject to the Award, the Holder shall, upon request by the Company, pay to the Company such amount of cash as the Company may be required, under all applicable federal, state, local or other laws or regulations, to withhold and pay over as income or other withholding taxes (the “Required Tax Payments”) with respect to the Award. If the Holder shall fail to advance the Required Tax Payments after request by the Company, the Company may, in its discretion, deduct any Required Tax Payments from any amount then or thereafter payable by the Company to the Holder or withhold Shares.           (b) The Holder may elect to satisfy his or her obligation to advance the Required Tax Payments by any of the following means: (1) a cash payment to the Company pursuant to Section 5.3(a), (2) delivery to the Company (either actual delivery or by attestation procedures established by the Company) of previously acquired shares of Common Stock for which the Holder has good title, free and clear of all liens and encumbrances and which the Holder has held for at least six months or purchased on the open market (“Mature Shares”) having a Fair Market Value, determined as of the date the obligation to withhold or pay taxes first arises in connection with the Award (the “Tax Date”), equal to the Required Tax Payments, (3) authorizing the Company to withhold from the Shares otherwise to be 4   delivered to the Holder pursuant to the Award, a number of whole Shares having a Fair Market Value, determined as of the Tax Date, equal to the Required Tax Payments, or (4) any combination of (1), (2) and (3). “Fair Market Value,” as of a specified date, means the fair market value of a share of Common Stock as determined by the Committee and may be determined by taking the mean between the highest and lowest quoted selling prices of Common Stock on any exchange or other market on which shares of Common Stock are traded on such date, or if there are no sales on such date, on the next following day on which there are sales. Shares to be delivered or withheld may not have a Fair Market Value in excess of the minimum amount of the Required Tax Payments. Any fraction of a Share which would be required to satisfy such an obligation shall be disregarded and the remaining amount due shall be paid in cash by the Holder. No Shares shall be delivered until the Required Tax Payments have been satisfied in full.           5.4. Compliance with Applicable Law. The Award is subject to the condition that if the listing, registration or qualification of the Shares subject to the Award upon any securities exchange or under any law, or the consent or approval of any governmental body, or the taking of any other action is necessary or desirable as a condition of, or in connection with, the vesting or delivery of such Shares, the Shares subject to the Award shall not vest or be delivered, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained, free of any conditions not acceptable to the Company. The Company agrees to use reasonable efforts to effect or obtain any such listing, registration, qualification, consent or approval.           5.5. Delivery of Shares. Subject to Section 5.3, upon the vesting of the Award, in whole or in part, the Company shall deliver or cause to be delivered the vested Shares. The Company shall pay all original issue or transfer taxes and all fees and expenses incident to such delivery, except as otherwise provided in Section 5.3.           5.6. Award Confers No Rights to Continued Employment. In no event shall the granting of the Award or its acceptance by the Holder give or be deemed to give the Holder any right to continued employment by the Company or a Subsidiary.           5.7. Decisions of Board of Directors or Committee. The Board of Directors or the Committee shall have the right to resolve all questions which may arise in connection with the Award. Any interpretation, determination or other action made or taken by the Board of Directors or the Committee regarding the Plan or this Agreement shall be final, binding and conclusive.           5.8. Agreement Subject to the Plan. This Agreement is subject to the provisions of the Plan and shall be interpreted in accordance therewith. The Holder hereby acknowledges receipt of a copy of the Plan.           6. Miscellaneous Provisions.           6.1. Employment by Subsidiary. References in this Agreement to employment by the Company shall also mean employment by a Subsidiary.           6.2. Successors. This Agreement shall be binding upon and inure to the benefit of any successor or successors of the Company and any person or persons who shall, upon the death of the Holder, acquire any rights hereunder in accordance with this Agreement or the Plan. 5             6.3. Notices. All notices, requests or other communications provided for in this Agreement shall be made, if to the Company, to Pulte Homes, Inc., 100 Bloomfield Hills Parkway, Suite 300, Bloomfield Hills, Michigan 48304, Attention: Vice President and General Counsel and if to the Holder, to the last known mailing address of the Holder contained in the records of the Company. All notices, requests or other communications provided for in this Agreement shall be made in writing either (a) by personal delivery, (b) by facsimile with confirmation of receipt, (c) by mailing in the United States mails or (d) by express courier service. The notice, request or other communication shall be deemed to be received upon personal delivery, upon confirmation of receipt of facsimile transmission, upon receipt by the party entitled thereto if by express courier service, or five days after the date mailed if by United States mails; provided, however, that if a notice, request or other communication is not received during regular business hours, it shall be deemed to be received on the next succeeding business day of the Company.           6.4. Governing Law. This Agreement, the Award and all determinations made and actions taken pursuant hereto and thereto, to the extent not otherwise governed by the laws of the United States, shall be governed by the laws of the State of Michigan and construed in accordance therewith without giving effect to conflicts of laws principles.           6.5. Counterparts. This Agreement may be executed in two counterparts each of which shall be deemed an original and both of which together shall           6.6. Entire Understanding. This Agreement and the Plan contain the entire understanding of the parties hereto with respect to the subject matter of the Agreement and supersedes all prior agreements, written or oral, with respect thereto.           6.7. Jurisdiction; Service of Process. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, the Agreement shall be brought against the parties, as the sole and exclusive forum, in the courts of the State of Michigan in the County of Oakland, or in the United States District Court for the Eastern District of Michigan, Southern Division, and each party consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. 6

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Title: My city put speed camera in a construction zone that's been finished for a month now on the interstate knowing no one will go 40mph Question:Basically just got a thing in the mail from my daily commute of a ticket for driving 46 mph on the interstate. A speed camera set up at the end of the construction zone that has been empty and competed for a month, no workers, just a construction zone sign with a speed limit, and some cones. I am forced to go the flow of traffic or it becomes a hazard in the morning. Is this entrapment by the city to get tickets using a construction zone with no construction in it? Answer #1: &gt; construction zone sign with a speed limit, and some cones If the construction zone sign is there, you need to abide by it. &gt; Is this entrapment by the city to get tickets using a construction zone with no construction in it? No. You can complain to your local government officials about this policy decision, however.

Name: Council Regulation (EC, ECSC, Euratom) No 2367/2001 of 30 November 2001 amending Regulations (EC, ECSC, Euratom) No 106/2001 laying down the weightings applicable from 1 July 2000 to the remuneration of officials of the European Communities serving in third countries and (EC, ECSC, Euratom) No 1794/2001 laying down the weightings applicable from 1 January 2001 to the remuneration of officials of the European Communities serving in third countries, with regard to the weightings applicable from 1 July 2000 and 1 January 2001 to the remuneration of officials serving in Naka (Japan) Type: Regulation Subject Matter: Asia and Oceania; personnel management and staff remuneration; EU institutions and European civil service; cooperation policy; monetary economics Date Published: nan Avis juridique important|32001R2367Council Regulation (EC, ECSC, Euratom) No 2367/2001 of 30 November 2001 amending Regulations (EC, ECSC, Euratom) No 106/2001 laying down the weightings applicable from 1 July 2000 to the remuneration of officials of the European Communities serving in third countries and (EC, ECSC, Euratom) No 1794/2001 laying down the weightings applicable from 1 January 2001 to the remuneration of officials of the European Communities serving in third countries, with regard to the weightings applicable from 1 July 2000 and 1 January 2001 to the remuneration of officials serving in Naka (Japan) Official Journal L 320 , 05/12/2001 P. 0001 - 0002Council Regulation (EC, ECSC, Euratom) No 2367/2001of 30 November 2001amending Regulations (EC, ECSC, Euratom) No 106/2001 laying down the weightings applicable from 1 July 2000 to the remuneration of officials of the European Communities serving in third countries and (EC, ECSC, Euratom) No 1794/2001 laying down the weightings applicable from 1 January 2001 to the remuneration of officials of the European Communities serving in third countries, with regard to the weightings applicable from 1 July 2000 and 1 January 2001 to the remuneration of officials serving in Naka (Japan)THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community,Having regard to the Staff Regulations of officials of the European Communities and the conditions of employment of other servants of the Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68(1), and in particular the first paragraph of Article 13 of Annex X,Having regard to Council Regulations (EC, ECSC, Euratom) No 106/2001(2) of 15 January 2001 laying down the weightings applicable from 1 July 2000 to the remuneration of officials of the European Communities serving in third countries and (EC, ECSC, Euratom) No 1794/2001(3) of 10 September 2001 laying down the weightings applicable from 1 January 2001 to the remuneration of officials of the European Communities serving in third countries,Having regard to the proposal from the Commission,Whereas:In updating the economic parity of Naka (Japan), the rise in the cost of living in another town of the same name was used by mistakes. The weightings applicable to Naka (Japan) from 1 July 2000 and 1 January 2001 are consequently inaccurate and have to be corrected,HAS ADOPTED THIS REGULATION:Article 1The tables annexed to Regulations (EC, ECSC, Euratom) No 106/2001 and (EC, ECSC, Euratom) No 1794/2001 shall be corrected with respect to Naka (Japan) as shown in the Annex.The exchange rates for the calculation of such remuneration shall be those used for implementation of the general budget of the European Union for the months preceding the months of July 2000 and January 2001 respectively.Article 2This Regulation shall enter into force on the day of 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 Brussels, 30 November 2001.For the CouncilThe PresidentL. Michel(1) OJ L 56, 4.3.1968, p. 1. Regulation as last amended by Regulation (EC, ECSC, Euratom) No 1986/2001 (OJ L 271, 12.10.2001, p. 1).(2) OJ L 19, 20.1.2001, p. 1.(3) OJ L 244, 14.9.2001, p. 1.ANNEX>TABLE>>TABLE>

Exhibit 10.7 Base Salaries of Named Executive Officers of the Registrant As of March 1, 2006, the following are the base salaries (on an annual basis) of the named executive officers (as defined in Item 402 (a)(3) of Regulation S-K) of Old Point Financial Corporation:   Robert F. Shuford    $ 242,000 Chairman, President & Chief Executive Officer    Old Point Financial Corporation    Louis G. Morris    $ 200,000 Executive Vice President/OPNB    Old Point Financial Corporation    Cary B. Epes    $ 141,500 Senior Vice President/Business Development & Lending    Old Point Financial Corporation    Margaret P. Causby    $ 141,500 Senior Vice President/Risk Management    Old Point Financial Corporation    Laurie D. Grabow    $ 124,800 Chief Financial Officer & Senior Vice President/Finance    Old Point Financial Corporation   

Exhibit 10.48   Execution Copy   TERMINATION AGREEMENT   THIS AGREEMENT is made as of the 31st day of January, 2008 by and between Nozhat Choudry (the “Employee”), a resident of the Province of Ontario, and OccuLogix, Inc. (the “Employer”), a corporation incorporated under the laws of the State of Delaware, and having its executive offices at 2600 Skymark Avenue, Building 9, Suite 201, Mississauga, Ontario, L4W 5B2.   WHEREAS, the Employer and the Employee entered into an employment agreement dated as of February 10, 2006, pursuant to which the Employee has been serving the Employer as its Vice President, Clinical Research, which employment agreement was amended as of April 1, 2006 (as so amended, the “Employment Agreement”);   AND WHEREAS, capitalized terms used in this Agreement, but not otherwise defined, shall have the respective meanings attributed to such terms in the Employment Agreement;   AND WHEREAS, the Employee and the Employer mutually have agreed that the services of the Employee no longer are required and, accordingly, have agreed to the termination of the Employee’s employment with the Employer pursuant to Section 8.1.3 of the Employment Agreement;   AND WHEREAS, the Employee and the Employer hereby acknowledge and agree that the reference to Section 8.1.2, contained in Section 9 of the Employment Agreement, is the result of a typographical error and instead should have been a reference to Section 8.1.3;   AND WHEREAS, the Employee and the Employer hereby further acknowledge and agree that, when the Employee’s employment under the Employment Agreement has been terminated by the Employer for any reason other than Just Cause pursuant to Section 8.1.3 of the Employment Agreement, the Employee is entitled to receive from the Employer, in addition to accrued but unpaid Salary, if any, a lump sum payment equal to 12 months’ of her Basic Salary and 2.5% of her Basic Salary in respect of her entitlement to Benefits (the “Employee’s Severance”), less any amounts payable to the Employee in lieu of notice where a Stop Work Notice has been given pursuant to Section 8.2 of the Employment Agreement and any amounts owing by the Employee to the Employer for any reason;   AND WHEREAS, the Employee has not been given a Stop Work Notice pursuant to Section 8.2 of the Employment Agreement;   AND WHEREAS, each of the Employee and the Employer agrees that it would not be in the bests interests of either of them to obligate the Employer to pay all of the Employee’s Severance upon the termination of the Employee’s employment with the Employer pursuant to Section 8.1.3 of the Employment Agreement;           AND WHEREAS, the Employment Agreement is further amended by this Agreement;   AND WHEREAS, the Employee has been granted an aggregate of 110,000 time-based stock options (the “Stock Options”) pursuant to the Employer’s 2002 Stock Option Plan, as amended (the “Stock Option Plan”);   AND WHEREAS, notwithstanding the proposed termination of the Employee’s employment with the Employer and subject to the Employer obtaining the requisite approval of its stockholders therefor, the Compensation Committee of the Employer’s board of directors and the Employer’s board of directors have approved the extension of the term of the Stock Options to the tenth anniversaries of their respective dates of grant;   NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement (the receipt and sufficiency of which are hereby acknowledged by the parties hereto), the parties hereto agree as follows:   1. TERMINATION   1.1           The Employee and the Employer hereby agree that the Employee’s employment with the Employer is terminated pursuant to Section 8.1.3 of the Employment Agreement, effective at the close of business on the date hereof (the “Termination Date”).  For greater certainty, the Employee hereby waives the requirement, under Section 8.1.3 of the Employment Agreement, to provide 12 months’ prior written notice to the Employee of the Employer’s intention to terminate her employment with the Employer.   2. RETURN OF PROPERTY   2.1           Subject to Section 2.2, the Employee hereby agrees that, by no later than the end of the Salary Continuance Period (defined below), she will certify, in writing, that she has returned to the Employer, and she will have returned to the Employer, all property of the Employer in the Employee’s possession, including, without limitation, all keys, business cards, computer hardware, including, without limitation, Blackberry units, printers, mice and other hardware accessories, and computer software.  The Employee hereby further agrees that, by no later than the end of the Salary Continuance Period (defined below), she will certify, in writing, that she has returned to the Employer or destroyed, and she will have returned to the Employer or destroyed, all tangible material embodying Confidential Information in any form whatsoever, including, without limitation, all paper copy copies, summaries and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information.   2.2           Notwithstanding Section 2.1, on or prior to the last day of the Salary Continuance Period (defined below), the Employee may purchase from the Employer at their then present net book value, as determined by the Employer acting in good faith, the Employer’s laptop computer and Blackberry unit that are in the Employee’s possession on the Termination Date (collectively, the “Computer Equipment”).     2     3. SEVERANCE   3.1           The Employee and the Employer hereby agree that, notwithstanding Section 9 of the Employment Agreement, the Employee’s Severance shall not be paid to her in a lump sum on the Termination Date.  In lieu thereof, during the period from the Termination Date to March 31, 2008 inclusive (the “Salary Continuance Period”), the Employer shall pay the Employee, on a semi-monthly basis according to the Employer’s regular payroll practices, amounts equal to the basic wages that the Employee was earning from the Employer immediately prior to the Termination Date (less applicable deductions and withholdings).  The aggregate net amount paid by the Employer to the Employee during the Salary Continuance Period, together with the aggregate amount of deductions and withholdings withheld by the Employer, in accordance with its regular payroll practices and pursuant to this Section 3.1, are hereinafter referred to, collectively, as the “Salary Continuance Amount”.   3.2           Subject to Section 3.3, on the earliest to occur of (i) June 30, 2008, (ii) the date on which the Employer closes a financing for total gross proceeds in an aggregate amount of at least U.S.$10,000,000, whether by way of debt, equity or otherwise, and whether such financing is effected in a single transaction or a series of related or unrelated transactions, and (iii) a Change of Control (defined below), the Employer shall pay the Employee, in a lump sum, an amount equal to (A) the Employee’s Severance minus (B) the Salary Continuance Amount, less applicable deductions and withholdings (the “Severance Balance”).  If the Employee advises the Employer that she wishes to exercise her right to purchase the Computer Equipment pursuant to Section 2.2, the Employer may set off against, or deduct from, the Severance Balance the purchase price of the Computer Equipment.  “Change of Control” shall be deemed to have occurred when:  (a) any Person, other than a Person or a combination of Persons presently owning, directly or indirectly, more than 20% of the issued and outstanding voting securities of the Employer, acquires or becomes the beneficial owner of, or a combination of Persons acting jointly and in concert acquires or becomes the beneficial owner of, directly or indirectly, more than 50% of the voting securities of the Employer, whether through the acquisition of previously issued and outstanding voting securities or of voting securities that have not been previously issued, or any combination thereof, or any other transaction having a similar effect; (b) the Employer merges with one or more corporations, including, without limitation, any Subsidiary or Affiliate of the Employer; (c) the Employer sells, leases or otherwise disposes of all or substantially all of its assets and undertaking, whether pursuant to one or more transactions; (d) any Person not part of existing management of the Employer or any Person not controlled by existing management of the Employer enters into any arrangement to provide management services to the Employer which results in either (Y) the termination by the Employer, for any reason other than Just Cause, of the employment of any two of the Chairman and Chief Executive Officer, President and Chief Operating Officer, Chief Financial Officer and General Counsel within three months of the date such arrangement is entered into or (Z) the termination by the Employer, for any reason other than Just Cause, of the employment of all such senior executive personnel within six months of the date that such arrangement is entered into; or (e) the Employer enters into any transaction or arrangement which would have the same, or similar, effect as the transactions referred to in (a), (b), (c) or (d) of this sentence.     3     3.3           If, prior to the end of the Salary Continuance Period, any petition should be filed by or against the Employer for liquidation or reorganization, or should the Employer become insolvent or make an assignment for the benefit of any creditor or creditors, or should a receiver or trustee be appointed for all or any significant part of the Employer’s assets, or should the Employer consent to the winding-up, liquidation or dissolution of itself or its affairs (each, a “Bankruptcy Event”), then an amount equal to (i) the Employee’s Severance minus (ii) the aggregate net amount paid by the Employer to the Employee to the date of the Bankruptcy Event, together with the aggregate amount of deductions and withholdings withheld by the Employer, pursuant to Section 3.1, shall become due and payable immediately to the Employee.  If a Bankruptcy Event occurs on or after March 31, 2008, then the Severance Balance shall become due and payable immediately to the Employee.   3.4           The Employer hereby agrees that, in the event that any of Elias Vamvakas, Tom Reeves, John Cornish, Bill Dumencu, David Eldridge, Julie Fotheringham, Stephen Kilmer, Suh Kim, Stephen Parks or Stephen Westing (each, an “OLT Member”) should become entitled to receive severance pursuant to his or her executive employment agreement at any time before the Employer has paid, in full, the amount due and payable to her pursuant to Section 3.2 or 3.3, as the case may be, the Employer shall not pay any OLT Member a percentage of his or her severance entitlement (without regard to applicable deductions and withholdings) that exceeds the percentage that (i) the Salary Continuance Amount plus the aggregate amount paid to the Employee pursuant to Sections 3.2 and 3.3, together with the aggregate amount of deductions and withholdings withheld by the Employer, represents of (ii) the amount of the Employee’s Severance.   3.5           For greater certainty, all amounts due and payable by the Employer to the Employee pursuant to this Article 3 shall be paid, net of applicable deductions and withholdings.   4. TRANSITION MATTERS AND E-MAIL ACCOUNT   4.1           The Employee hereby agrees to make herself available to the Employer during the Salary Continuance Period, whenever reasonably requested by the Employer, in order to assist the Employer with respect to transition matters falling within the scope of the Employee’s duties and responsibilities prior to the Termination Date.   4.2           The Employee shall be entitled to continued access to her Occulogix.com e-mail account during the Salary Continuance Period.  However, such access may be denied by the Employer at any time for reason of Just Cause or if the Employer determines, in good faith and acting reasonably, that such access could give rise to or result in, or lead to, any harm or legal liability to or for the Employer.   5. STOCK OPTIONS   5.1           Notwithstanding the termination hereunder of the Employee’s employment with the Employer but subject to the Employer obtaining the requisite approval of its stockholders therefor in accordance with the provisions of the Stock Option Plan and all applicable laws, regulations and rules (including, without limitation, the rules of the Toronto Stock Exchange) (the “Requisite Stockholder Approval”), the term of the Stock Options shall be extended to, and the Stock Options shall remain exercisable until, the tenth anniversaries of their respective dates of grant, being (i) February 10, 2016 for 80,000 of the Stock Options and (ii) July 3, 2017 for 30,000 of the Stock Options.  Such term extension shall become effective on the date on which the Requisite Stockholder Approval is obtained, if ever, and all of the agreements pursuant to which the Stock Options were granted shall be deemed to be amended accordingly on the date on which the Requisite Stockholder Approval is obtained, if ever.     4     5.2           The Employer shall use commercially reasonable efforts to obtain the Requisite Stockholder Approval, which covenant shall terminate and become null and void, and be of no more force or effect, upon the earlier to occur of (i) the date on which a meeting of the Employer’s stockholders may be convened to obtain the Requisite Stockholder Approval and (ii) June 30, 2008.   6. RELEASE AND TERMINATION   6.1           The Employee hereby agrees, on behalf of herself and her administrators, heirs, assigns and anyone claiming through her, to release completely and forever discharge the Employer and its affiliates and subsidiaries, and their respective officers, directors, shareholders, agents, servants, representatives, underwriters, successors, heirs and assigns, from any and all claims, demands, obligations and causes of action, of any nature whatsoever, whether known or unknown, which the Employee ever had, now has or might have in the future as a result of the Employee’s employment with the Employer or the termination thereof hereunder, including, without limitation, any claim relating to the Employment Agreement or the termination thereof hereunder or any claim relating to any violation of any Canadian federal or provincial statute or regulation, any claim for wrongful discharge or breach of contract or any claim relating to Canadian federal or provincial laws (including, without limitation, the Employment Standards Act (Ontario) and the Ontario Human Rights Code), provided, however, that such release and discharge shall be effective only upon the payment in full by the Employer of the Severance Balance pursuant to Article 3.  For greater certainty, the release and discharge by the Employee pursuant to this Section 6.1 shall have no force or effect whatsoever until such time, if ever, that the Severance Balance is paid in full by the Employer to the Employee.  Notwithstanding the foregoing, nothing herein shall be construed as depriving the Employee of any indemnification rights to which she is entitled under the Amended and Restated By-laws of the Employer on or prior to the Termination Date or of any protection to which she may be entitled, on, prior to or after the Termination Date, under the Employer’s directors’ and officers’ liability insurance policy from time to time.   6.2           Section 12 of the Employment Agreement (Non-Competition) is hereby amended by replacing, in the first paragraph thereof, the words “which involves the development, manufacturing, sales and/or distribution of products, equipment, services and/or technology relating to the apheresis treatment of ophthalmic diseases or which is otherwise the same as, or substantially similar to, or which competes with or would compete with, the business carried on by the Corporation or any of its Subsidiaries during the Employment Period or at the end thereof.” with the words “(i) the Corporation’s RHEO business and/or (ii) the business of OcuSense, Inc., as each of them was carried on during the Employment Period.”.     5     6.3           The Employment Agreement is hereby terminated and rendered null and void, save and except for those provisions thereof that are expressly stated to survive the termination thereof, including, without limitation, Section 12 (Non-Competition), as amended by Section 6.2 of this Agreement, and Sections 13 (No Solicitation of Customers or Patients), 14 (No Solicitation of Employees) 15 (Confidentiality) and 16 (Remedies).  The Employee hereby agrees to abide by such provisions, including, for greater certainty, Section 12 of the Employment Agreement (Non-Competition), as amended by Section 6.2 of this Agreement.   7. FUTURE EMPLOYMENT   7.1           The mitigation by the Employee of any damages or losses arising from the termination hereunder of her employment with the Employer and the termination of the Employment Agreement hereunder (including, without limitation, by obtaining other employment) shall not, in any way, derogate from, or otherwise affect, the Employee’s rights or the Employer’s obligations under this Agreement.  For greater certainty, and without derogating from the generality of the foregoing statement, no amount to be paid by the Employer under this Agreement shall be reduced by any compensation earned by the Employee as a result of employment by another employer or otherwise after the Termination Date.   8. THIRD PARTY COMMUNICATIONS   8.1           In consideration of the mutual promises and covenants contained herein, each of the parties hereto hereby agrees that she and it will not make any statements to, or initiate or participate in any discussions with, any other person, including, without limitation, the Employer’s customers, which are derogatory, disparaging or injurious to the reputation of the Employee or the Employer.  This Section 8.1, in no way, shall be construed as prohibiting either party hereto from responding truthfully to any question or interrogatory to which such party is requested to respond.   9. ACKNOWLEDGEMENT   9.1 The Employee hereby acknowledges that:   (a) She has had sufficient time to review and consider this Agreement thoroughly;   (b) She has read and understands the terms of this Agreement and her obligations hereunder;   (c) She has been given an opportunity to obtain independent legal advice, or such other advice as she may desire, concerning the interpretation and effect of this Agreement; and     6   (d) She is entering this Agreement voluntarily and without any pressure from the Employer.   10. MISCELLANEOUS   10.1         The headings in this Agreement are included solely for convenience of reference and shall not affect the construction or interpretation hereof.   10.2         The parties hereto expressly agree that nothing in this Agreement shall be construed as an admission of liability.   10.3         This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, trustees, administrators, successors and assigns.   10.4         This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter of the termination of the Employee’s employment with the Employer.  This Agreement supersedes and replaces all prior agreements, if any, written or oral, with respect to such subject matter and any rights which the Employee may have by reason of any such prior agreements or by reason of the Employee’s employment with the Corporation.  There are no representations, warranties or agreements between the parties hereto in connection with the subject matter of this Agreement, except as specifically set forth in this Agreement.  No reliance is placed on any representation, opinion, advice or assertion of fact made by the Employer or any of its officers, directors, agents or employees to the Employee, except to the extent that the same has been reduced to writing and included as a term of this Agreement.  Accordingly, there shall be no liability, either in tort or in contract, assessed in relation to any such representation, opinion, advice or assertion of fact, except to the extent aforesaid.   10.5         Each of the provisions contained in this Agreement is distinct and severable, and a declaration of invalidity or unenforceability of any provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof.   10.6         This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein.   10.7         This Agreement may be signed in counterparts and delivered by facsimile transmission or other electronic means, and each of such counterparts shall constitute an original document, and such counterparts, taken together,     [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]     7   IN WITNESS WHEREOF, the parties have executed this Agreement.     OCCULOGIX, INC.           By: “Suh Kim”     Suh Kim     General Counsel       “Nozhat Choudry” Signature of Witness   Nozhat Choudry             Name of Witness (please print)         8

As filed with the Securities and Exchange Commission on January 21, 2011 Registration No. 333- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BALDWIN TECHNOLOGY COMPANY, INC. (Exact Name of Registrant as Specified in Its Charter) Delaware (State or Other Jurisdiction of incorporation) (Primary Standard Industrial Classification Code Number) 13-3258160 (IRS Employer Identification Number) 2 Trap Falls Road, Suite 402 Shelton, Connecticut 06484 (203) 402-1000 (Address, Including Zip Code, and Telephone Number, including area code, of Registrant's Principal Executive Offices) BALDWIN TECHNOLOGY COMPANY, INC. EMPLOYMENT AWARD OF STOCK OPTIONS TO MARK T. BECKER (Full Title of Plan) c/o Helen P. Oster, Esq. Corporate Secretary Baldwin Technology Company, Inc. 2 Trap Falls Road, Suite 402 Shelton, Connecticut 06484 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service) With a copy to: Edward B. Whittemore, Esq. Murtha Cullina LLP CityPlace, 29th Floor 185 Asylum Street Hartford, Connecticut 06103 Telephone:(860)240-6075 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 definition of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.(Check one): Large accelerated filero Accelerated filero Non-accelerated filerx Smaller reporting companyo CALCULATION OF REGISTRATION FEE Title of securities to be registered (1) Amount to be Registered Proposed maximum offering price per share (2) Proposed maximum aggregate offering price (2) Amount of registration fee (3) Class A Common Stock, $.01 par value Shares The number of shares being registered includes an indeterminate number of additional shares which may become issuable as a result of stock splits, stock dividends, or similar transactions in accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”).All such shares of Common Stock are registered for offer and sale hereunder. Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) promulgated under the Securities Act on the basis of the average of thehigh and low prices for Class A Common Stock of Baldwin Technology Company, Inc. as reported on the NYSE Amex Exchange on January 14, 2011. Calculated pursuant to Section 6(b) of the Securities Act as follows: Proposed maximum aggregate offering price multiplied by .00011610. EXPLANATORY NOTE This Registration Statement on Form S-8 relates to 200,000 shares of Class A Common Stock, par value $.01 per share (“Common Stock”), of Baldwin Technology Company, Inc. (the “Company”) which may be issued upon the exercise of a certain stock option awarded to Mark T. Becker to induce Mr. Becker to enter into an Employment Agreement between the Company and Mr. Becker dated January 5, 2011 and to serve as the President and Chief Executive Officer of the Company. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1.Plan Information The document(s) containing the information specified in PartI of Form S-8 will be sent or given to the participant who is eligible to participate in the Plan as specified by Rule428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Securities Act”). Such documents are not being filed with the Commission, but constitute (along with the documents incorporated by reference into this Registration Statement pursuant to Item3 of PartII hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act. Item 2.Registrant Information and Employee Plan Annual Information The Company shall furnish without charge to each person to whom the prospectus is delivered, on the written or oral request of such person, a copy of any and all of the documents incorporated by reference into this registration statement, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference to the information that is incorporated). Requests should be directed to Baldwin Technology Company, Inc., Attention: Helen P. Oster, Esq., Corporate Secretary, 2 Trap Falls Road, Suite402, Shelton, Connecticut 06484, telephone: (203) 402-1004. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3.Incorporation of Documents by Reference. The following documents filed by the Company with the Commission are hereby incorporated by reference into this Registration Statement: (a) The Company’s latest Annual Report on Form 10-K for the fiscal year ended June 30, 2010, filed with the Commission on September 29, 2010, pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). -1- (b) The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2010, filed with the Commission on November 15, 2010. (c) The Company’s Current Reports on Form 8-K filed with the Commission on July 7, 2010, July 14, 2010, September 2, 2010, October 5, 2010, October 22, 2010, November 19, 2010, December 29, 2010 and January 10, 2011. (d) The description of the Company’s Class A Common Stock, par value $.01 per share, contained in its Registration Statement on Form 8-A (Reg. No. 0-20382) filed with the Commission on November 20, 1986 pursuant to Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all shares of Common Stock offered hereby have been sold or which deregisters all shares of Common Stock remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents.Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Certain information contained in this Registration Statement summarizes, is based upon, or refers to, information contained in one or more exhibits to this Registration Statement.Accordingly, the information contained herein is qualified in its entirety by reference to such documents and should be read in conjunction therewith. Item 4.Description of Securities. Not applicable. Item 5.Interests of Named Experts and Counsel. The legality of the securities offered pursuant to this Registration Statement has been passed on by Helen P. Oster, Esq., Corporate Secretary of the Company.Ms.Oster is a shareowner of Common Stock. Item 6.Indemnification of Directors and Officers. The Company’s By-Laws provide that the Company shall, to the fullest extent permitted by Section 145 of the General Corporation Law of the State of Delaware, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto. -2- Section 145 of the General Corporation Law of the State of Delaware permits a corporation, under specified circumstances, to indemnify its directors, officers, employees or agents against expenses (including attorney’s fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason of the fact that they were or are directors, officers, employees or agents of the Company, if such directors, officers, employees or agents acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action, i.e., one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors, officers, employees or agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. Article Seven of the Company's Amended and Restated Certificate of Incorporation provides that no director of the Company will be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director except (a) for any breach of the director's duty of loyalty to the Company or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the General Corporation Law of the State of Delaware or (d) for any transaction from which the director derived an improper personal benefit. The Registrant has procured Directors and Officers liability insurance for wrongful acts. This is an indemnity policy for the Registrant to protect it against liability assumed or incurred under the above indemnification provisions and under the written agreements referred to below, including defense provisions, on behalf of the directors and officers. The directors and officers are thus indemnified against loss arising from any civil claims or claims by reason of any wrongful act done or alleged to have been done while acting in their respective capacities as directors or officers. The policy excludes claims brought about or contributed to by dishonest, fraudulent, criminal or malicious acts or omissions by directors or officers. The Registrant has also procured excess liability insurance coverage to protect the Directors and Officers against liability for wrongful acts.This is a difference-in-coverage policy which will pay on behalf of the Directors and Officers when the Registrant does not indemnify them. As a supplement to and in furtherance of the provisions regarding indemnification ofDirectors and Officers contained in the Certificate of Incorporation and By-Laws of the Company, the Company has entered into written agreements with each of its Directors and Officers to indemnify and advance expenses to said individuals to the fullest extent permitted by Delaware law. -3- Item 7.Exemption from Registration Claimed. Not applicable. Item 8.Exhibits. Exhibit No. Description Employment Agreement between Baldwin Technology Company, Inc. and Mark T. Becker dated January 5, 2011, filed as Exhibit 10.1 to the Company’s current report on Form 8-K filed on January 10, 2011, is incorporated by reference herein. Non-Plan Option Grant Certificate dated January 5, 2011 issued to Mark T. Becker, filed as Exhibit 10.3 to the Company’s current report on Form 8-K filed on January 10, 2011, is incorporated by reference herein. 5 Opinion of Helen P. Oster, Esq. regarding legality of the shares of Class A Common Stock (filed herewith). Consent of Grant Thornton LLP (filed herewith). Consent of Helen P. Oster, Esq. (included in Exhibit 5). 24 Power of Attorney (included on the signature page of this Registration Statement). Item 9.Undertakings. (a)The undersigned Registrant hereby undertakes: (1)To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any Prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”); -4- (ii) To reflect in the Prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of Prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply to this registration on Form S-8, if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2)That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. -5- SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, on January 21, 2011. BALDWIN TECHNOLOGY COMPANY, INC. By: /s/Mark T. Becker Name: Mark T. Becker Title: President and Chief Executive Officer Each person whose signature to this Registration Statement appears below hereby appoints each of Mark T. Becker and Helen P. Oster as his or her attorney-in-fact to sign on his or her behalf individually and in the capacity stated below and to file all supplements, amendments and post-effective amendments to this Registration Statement, and any and all instruments or documents filed as a part of or in connection with this Registration Statement or any amendment or supplement thereto, and any such attorney-in-fact may make such changes and additions to this Registration Statement as such attorney-in-fact may deem necessary or appropriate. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date /s/Gerald A. Nathe Chairman of the Board January 21, 2011 Gerald A. Nathe and a Director /s/Mark T. Becker President, Chief Executive January 21, 2011 Mark T. Becker Officer and a Director (Principal Executive Officer) /s/John P. Jordan Vice President—Global January 21, 2011 John P. Jordan Administrative Services, Chief (Principal Financial Officer) Financial Officer and Treasurer /s/Leon Richards Controller and January 21, 2011 Leon Richards Chief Accounting Officer (Principal Accounting Officer) -6- Signature Title Date /s/Rolf Bergstrom Director January 21, 2011 Rolf Bergstrom /s/Samuel B. Fortenbaugh III Director January 21, 2011 Samuel B. Fortenbaugh III /s/Paul J. Griswold Director January 21, 2011 Paul J. Griswold /s/Ronald B. Salvagio Director January 21, 2011 Ronald B. Salvagio /s/Claes Warnander Director January 21, 2011 Claes Warnander -7- EXHIBIT INDEX Exhibit Description Employment Agreement between Baldwin Technology Company, Inc. and Mark T. Becker dated January 5, 2011, filed as Exhibit 10.1 to the Company’s current report on Form 8-K filed on January 10, 2011, is incorporated by reference herein. Non-Plan Option Grant Certificate dated January 5, 2011 issued to Mark T. Becker, filed as Exhibit 10.3 to the Company’s current report on Form 8-K filed on January 10, 2011, is incorporated by reference herein. 5 Opinion of Helen P. Oster, Esq. regarding legality of the shares of Class A Common Stock (filed herewith). Consent of Grant Thornton LLP (filed herewith). Consent of Helen P. Oster, Esq. (included in Exhibit 5). 24 Power of Attorney (included on the signature page of this Registration Statement).