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Exhibit 10.3 Number: EMPLOYMENT CONTRACT (2009 Version)   Full Name of Party A (Employer)     Jiangsu Dambon Mechanical & Electrical Co., Ltd. Type of Business Registration Limited Liability Company Legal Representative (or Principal Officer) Yuan Qihong Registered Address 10-8 Meiya Road, Heping Village, Baohua Town, Jurong Zip Code: 212415 Principal Place of Business Zip Code: 212415 Social Security No. 52080166 Organization Code 797432141 Contact Dept. Admin. Dept. Contact Person Yu Lei Contact Phone 025-85818009     Name of Party B (Employee) Yan Liang Sex Male Education Background University Date of Birth March 1979 Date of Employment February 2010 Identity Card Number 432801197903231015   JIANGSU PROVINCIAL DEPARTMENT OF LABOR AND SOCIAL SECURITY       In accordance with the Labor Law of the People’s Republic of China, the Regulations of Jiangsu Province on Labor Contract and other relevant laws and regulations, this Employment Contract is made by and between Party A and Party B on the basis of the principle of equality and voluntariness, justice and equity, amicable consultations, and good faith under the following terms and conditions: I.   TERM OF EMPLOYMENT CONTRACT It is mutually agreed that the term of the Employment Contract shall be defined in Type  A   as set forth below: A.   Fixed-term Employment Contract shall start from February 10, 2010 and end on February 9, 2013. Upon expiration, this Contract can be renewed after mutual agreement reached by both parties through consultations. This Contract shall be terminated if the two parties or either party refuses to renew the Contract. B.   Open-ended Employment Contract shall start from _______________ (dd/mm/yyyy). If an employee proposes or agrees to renew and conclude the Employment Contract in any of the circumstances as specified in Article 14 of the Labor Contract Law, an open-ended employment contract shall be concluded. C.   This Contract shall take effect as from February 10, 2010 and shall be terminated upon completion of the job assignment of  (Such job assignment shall be determined by Party A prior to the execution of this Contract and the target to be achieved shall be well defined and specific.)   II.   SCOPE AND PLACE OF WORK   1.   Scope of Work (1)   After consultation with Party A, Party B shall be engaged in the work of Business Management in the capacity of CFO based upon the requirements of Party A. Party A may reassign Party B to other work post on the basis of the principle of rationalization and good faith according to the needs of the work and the appraisal results of Party B’s performance. Party B shall submit itself to Party A’s arrangements. (2)   The scope and requirements for Party B’s work arranged by Party A shall conform to the rules and regulations lawfully established and published by Party A. Party B shall perform its labor obligations in accordance with the scope and requirements for the work arranged by Party A.   1   2.   Place of Work: 10-8 Meiya Road, Heping Village, Baohua Town, Jurong III.   WORKING HOURS, REST AND VACATIONS (1)   Both parties, as a result of amicable consultations, agree that Party B shall work 40 hours a week on the average, and the working hours and rest shall be determined by Type A set forth below: A.   Party A practices the working hour system under which Party B shall work for eight (8) hours a day. The specific work schedule is arranged by Party A as follows: Workday:                       Monday          to    Friday      ; Working Hour:                      am. to                           pm. Rest Day: Saturday and Sunday B.   Party A practices the three-shift workday system under which Party B shall work shifts a day. C.   Party A shall assign Party B to the job of                           , which belongs to the flexible working hour system. Both parties shall execute the provisions of flexible working hour system in accordance with the law. D.   Party A shall assign Party B to the job of                     , which belongs to the comprehensive working hour calculation system. Both parties shall execute the provisions of comprehensive working hour calculation system in accordance with the law. (2)   Party A shall strictly abide by the statutory working hours and exercise the control on the overtime work to guarantee Party B’s good rest, physical and mental health. When Party A must arrange for Party B to work overtime due to the job requirements, Party A shall consult with the labor union and Party B to obtain their consents, and shall grant Party B compensatory leave or overtime pay for working overtime in accordance with the law. (3)   Party A shall arrange for Party B to take annual vacation with pay.   IV.   LABOR PROTECTION AND WORKING CONDITIONS (1)   For any work post with the possible hazard of occupational disease, Party A shall fulfill its obligation of telling the truth to Party B, educate Party B on occupational safety and health, prevent accidents in the process of work and reduce occupational hazards. (2)   Party A shall provide Party B with occupational safety and health conditions conforming to the provisions of the State and necessary articles of labor protection, and provide regular health examination for Party B engaged in work with occupational hazards.   2 (3)   Party B must strictly abide by rules of safe operation in the process of work. Party B shall have the right to refuse to operate if the management personnel of Party A command the operation in violation of rules and regulations or force Party B to run risks in operation. (4)   Party A shall provide Party B with special protection in accordance with the provisions of the State concerning the special protection to female and juvenile workers. (5)   When Party B suffers from illness or non-industrial injury, Party A shall execute the provisions of the State concerning the medical treatment period. V.   REMUNERATIONS Party A shall, at least once a month, pay the wage to Party B in the form of currency. The wage paid to Party B shall not be deducted or delayed without justification. When Party B provides its normal labor within the statutory working hour, the wage paid to Party B by Party A shall not be lower than the local standard on minimum wages. (1)   Party A undertakes that the 15th day of each month shall be the date of wage payment. (2)   Party B’s monthly wage during the probation period shall be RMB12,000.00. (3)   After mutual agreement by both parties, Party B’s remunerations are determined by Type A set forth below:   A.   Party B’s remunerations shall be determined by the internal wage distribution regulations as defined in the bylaws formulated by Party A in accordance with the law. The monthly wage paid to Party B shall be RMB15,000.00  based on its work post      B.   Party A shall adopt the internal wage distribution regulations integrating basic wage with performance pay. The basic wage paid to Party B shall be determined as RMB /month and readjusted in the later time in accordance with the internal wage distribution regulations. The performance pay shall be determined in accordance with the internal wage distribution regulations on the basis of Party B’s job achievements, work results and actual contributions.      C.   When Party A practices the piecework wage system, Party B’s quota of work shall be fixed in accordance with the standard that more than 90% of laborers doing the same work in the same company can reach such quota within the statutory working hour. When Party B reaches the quota of work as prescribed by Party A within the statutory working hour and with the quality guaranteed, remunerations shall paid timely in full by Party A to Party B.   3   (4)   Party A shall raise Party B’s wage to a reasonable level based on its economic results, the guiding wage level and the guiding wage standard published by the local government. Party B’s wage raising method shall be determined by the following:   (collective bargaining agreement or internal regulations for normal wage raise). (5)   Party B’s overtime pay shall be calculated on the basis of the rate of local standard on minimum wages. (6)   Party A shall deduct Party B’s wage of the day of absence during the period of Party B’s leave of absence to attend to private affairs. (7)   Party B is entitled to vacations with pay (marriage leave, funeral leave, annual vacations, and family-visit leave), and the remunerations paid to Party B shall be based on Party B’s normal wage. VI.   SOCIAL INSURANCE AND WELFARE (1)   Both parties shall, in accordance with the law, participate in social insurance and pay insurance premiums in a timely manner. The portions to be paid by Party B according to law shall be withheld by Party A from Party B’s remunerations. (2)   Party A shall announce to the public the information on payments for Party B’s various social insurance premiums, and Party B shall have the right to check with Party A on the payments for its various social insurance premiums. In this case, Party A shall render all necessary assistance to Party B. (3)   When Party B suffers from an industrial injury, Party A shall be responsible to provide prompt rescue, apply to the labor and social security administrative department for determination of industrial injury within the specified time limit, proceed with the appraisal of Party B’s physical disability in accordance with the law, and perform necessary obligations to enable Party B to enjoy the medical treatment for industrial injury. (4)   Party B is entitled to the welfare treatment as prescribed by the State’s regulations, and Party A shall execute such regulations.   4   VII.   LABOR DISCIPLINE Party A shall formulate the labor disciplines in conformity with the provisions as specified by the laws, regulations and policies, go through the democratic procedures and make announcement to Party B. Party B shall submit himself to Party A’s such labor disciplines. VIII.   PROVISIONS OF CONSULTATION Both parties, as a result of amicable consultations, mutually agree to choose the agreed covenant as defined in Subparagraph set forth below: A.   Where Party B’s work involves Party A’s trade secrets, Party A shall, beforehand, consult with Party B on matters concerning the maintenance of the trade secrets or the restriction of business competition, and sign with Party B the confidentiality agreement or non-compete agreement. B.   Where Party A pays to recruit or train Party B and demands Party B to serve a specific term, a prior consent shall be obtained from Party B and a separate agreement shall be signed to clarify the rights and obligations of both parties. C.   Where Party A pays or has paid to provide Party B with other special treatments, such as the (i.e., housing, car, etc.) and demands Party B to serve a specific term, a prior consent shall be obtained from Party B and a separate agreement D.   Party A agrees to provide Party B with the additional endowment insurance (annuity) and the additional medical insurance with the specific rates set forth below: E.   Party A agrees to provide Party B with the following welfare treatment:   F.   Other matters to be agreed upon by both parties:   5 . IX.   SETTLEMENT OF LABOR DISPUTES   (1) Where a labor dispute takes place from the execution of this Contract, both parties may seek for settlement through consultations. In case neither party agrees to settle the disputes through consultations or in case no settlement can be reached through consultations, the parties involved may apply to the labor dispute mediation committee of their company for mediation. If the mediation fails and one of the parties requests for arbitration, that party may apply to the labor dispute arbitration committee for arbitration. Either party may also directly apply to the labor dispute arbitration committee for arbitration. The party that requests for arbitration shall file a written application to a labor dispute arbitration committee within sixty (60) days starting from the date of the occurrence of the labor dispute. If one of the parties is not satisfied with the adjudication of arbitration, the party may bring a lawsuit to a people’s court within fifteen (15) days upon receipt of the ruling of arbitration.     (2) Party B shall have the right to expose and report to the labor and social security administrative department and the proper authorities Party A’s acts in violation of laws, rules and regulations on labor, which infringes upon Party B’s legitimate rights and interests.   X.   MISCELLANEOUS   (1) During the term of this Employment Contract, for the convenience of mutual contacts, Party B shall notify Party A promptly of any changes to Party B’s permanent residence, current address or contact method.     (2) Any other matters not mentioned or included in this Contract shall be handled in accordance with the regulations of the State. In the absence of such regulations, both parties shall resort to amicable consultations on the basis of the principle of equality.      (3) This Contract is void if altered.      (4) This Contract may be written in both Chinese and other languages. In case of any discrepancy between the Chinese and other versions, the Chinese version shall prevail.      (5) This Contract is made out in duplicate, and each party shall hold one identical copy.      (6) This Contract becomes effective as of February 10, 2010.       6   IN WITNESS WHEREOF, the undersigned have executed and delivered this Employment Contract as of the date set forth below. Signed by Legal Representative:                                                                                     Party B’s Signature: or Authorized Agent: Sealed by Party A: Date: February 5, 2010                                                                                                       Date: February 5, 2010                 7    

EXHIBIT 23.2 /Letterhead/ CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM Board of Directors CopSync, Inc.

Exhibit 10.5.13 OMNIBUS CERTIFICATE (IMPETRO RESOURCES, LLC) I, Michael J. Pawelek, the President and Chief Executive Officer of ImPetro Resources, LLC, a Delaware limited liability company (the “Company”), (a) hereby deliver this certificate pursuant to that certain Credit Agreement dated June27, 2013, (the “Credit Agreement”) between Starboard Resources, Inc., a Delaware corporation (the “Borrower”) and Independent Bank, a Texas banking association, (the “Lender”), all the defined terms of the Credit Agreement being incorporated herein by reference the same as if set forth herein verbatim, and (b) hereby certify to the Lender, with the knowledge and intent that the Lender may, without any investigation on its part, rely fully upon the matters herein in connection with extensions of credit by the Lender to the Borrower, that the following matters are true and correct on the date hereof: (i)Resolutions.Attached hereto as Exhibit A is a true and correct copy of resolutions relating to the Credit Documents which have been duly and unanimously adopted by the written consent of the sole Member of the Company, and none of such resolutions has been amended, modified or repealed in any respect, and all of such resolutions are in full force and effect on the date hereof. (ii)Incumbency.Each of the named individuals are the duly elected, qualified and acting officers of the Company, and hold the offices set forth opposite their respective names as of the date hereof, and the signatures set opposite the respective names and titles of said officers are their true and authentic signatures: Name Title Specimen Signature Michael J. Pawelek President/CEO (iii)Articles of Organization.Attached hereto as Exhibit B is a true and correct copy of the Articles of Organization establishing the Company as a limited liability company, together with all amendments thereto through the date hereof. (iv)Company Agreement.Attached hereto as Exhibit C is a true and correct copy of the Company Agreement of the Company in effect on the date hereof. (v)Default.To the best knowledge of the undersigned, no Default has occurred and is continuing under the terms of the Credit Agreement and the making of the initial loan will not cause a Default to occur. (vi)Organization, Standing, Qualification.To the best knowledge of the undersigned, the Company (a) is a limited liability company duly organized, validly existing and in good standing under the laws of its state of Delaware, (b) has all requisite power to conduct its business and to execute and deliver and perform its obligations under, the Credit Documents, and (c) is duly qualified to transact business as a foreign corporation in each jurisdiction where the nature of its business requires the same. (vii)Representations.To the best knowledge of the undersigned, the representations and warranties contained in the Credit Agreement and the other Credit Documents are true and correct as of the date hereof. 1 IN WITNESS WHEREOF, I have duly executed this certificate as of June27, 2013. Michael J. Pawelek, President/CEO of ImPetro Resources, LLC 2 EXHIBIT A RESOLUTIONS OF SOLE MEMBER OF IMPETRO RESOURCES, LLC WHEREAS, Starboard Resources, Inc., a Delaware corporation (the “Borrower”), desires to enter into a Credit Agreement (the “Credit Agreement”) with Independent Bank (the “Lender”) for the purpose of borrowing up to $100,000,000 and to deliver that certain proposed promissory note to be executed by the Company and payable to the order of the Lender in the original principal amount of $100,000,000 (the “Note”); and WHEREAS, in order to secure the indebtedness of the Borrower to the Lender, the Lender has required the Borrower to obtain the guaranty (the “Guaranty”) of ImPetro Resources, LLC, a Delaware limited liability company (the “Company”); and WHEREAS, in order to secure the indebtednessof the Borrower to the Lender and of the Company under its Guaranty, the Lender has required the Company to execute and deliver to the Lender security agreements and other agreements covering certain properties of the Company (the “Security Documents”); and WHEREAS, the Credit Agreement, the Note, the Guaranty, the Security Documents and all other mortgages, deeds of trust, security agreements, financing statements, guaranties, intercreditor agreements and other documents, agreements and instruments to be executed and delivered in connection with the Credit Agreement (collectively, the “Credit Documents”) have been submitted to and reviewed by each of the managers and members of the Company; WHEREAS, the sole Member of the Company has considered the risks to the Company and the benefits that will be received upon executing the Guaranty and thereby allowing Borrower to have access to the Loan. NOW, THEREFORE, BE IT RESOLVED, that in the judgment of the sole Member of the Company, the execution and delivery of the Guaranty and the other Credit Documents may reasonably be expected to benefit the Company, directly or indirectly; and FURTHER RESOLVED, that the form, terms and provisions of the Credit Documents, including all exhibits, schedules and attachments thereto, are hereby approved in all respects, and the execution and delivery thereof, and the performance thereunder by the Company are hereby authorized, approved and directed; and FURTHER RESOLVED, that the sole Member or any duly appointed officer of the Company be, and each hereby is, authorized, empowered and directed to execute the Credit Documents to which the Company is a party for and on behalf and in the name of the Company, with such changes in the terms and provisions thereof as he shall, in his sole discretion, deem necessary or desirable and in the best interest of the Company, his signature being conclusive evidence that he did so deem any such changes to be necessary or desirable and in the best interest of the Company; and 3 FURTHER RESOLVED, that the sole Member or any duly appointed officer of the Company be, and each hereby is, authorized, empowered and directed to perform all acts and to do all things which he may deem necessary or desirable to consummate the transactions contemplated by the Credit Documents, with such modifications, amendments or future agreements as he shall, in his sole discretion, deem necessary or desirable and in the best interest of the Company, his performance of any acts for and on behalf and in the name of the Company to be conclusive evidence that he did so deem such to be necessary or desirable; and FURTHER RESOLVED, that the sole Member or any duly appointed officer of the Company be, and each hereby is, authorized and directed to execute and deliver all other documents, instruments and agreements, to waive any or all conditions, and to do all things necessary or helpful to carry out the purposes of the foregoing resolutions, and all acts and deeds of the officers of the Company which are consistent with the purposes and intent of the foregoing resolutions shall be, and the same hereby are, in all respects ratified, approved, confirmed and adopted as the acts and deeds of the Company, and the execution and delivery of any such documents, or the waiver of such conditions, and the doing and performance of such acts and deeds shall be conclusive evidence that he deemed such execution and delivery, such waiver or such action to be consistent with the purpose and intent of these resolutions; and FURTHER RESOLVED, that the sole Member or any duly appointed officer of the Company be, and each hereby is, authorized and directed to certify and attest any documents, instruments and agreements which he may deem necessary or appropriate to consummate the transactions contemplated by the Credit Documents, but such certification or attestation shall not be required for the validity of the particular document, instrument or agreement. FURTHER RESOLVED, that the foregoing resolutions shall apply to the authority of the sole Member of the Company to enter into amendments or supplements to the foregoing Credit Documents in the future and to create liens in favor of the Lender in the future on other or additional assets and properties of the Company as security for the obligations represented by the Credit Documents unless and until the Company shall have delivered a letter to the Lender by certified mail retracting such authority, which letter must specifically refer to these resolutions. IN WITNESS WHEREOF, the undersigned has executed this Consent as of the 27th day of June, 2013. SOLE MEMBER: Starboard Resources, Inc., a Delaware limited liability company By: Michael J. Pawelek, its President 4 ExhibitB Certificate of Formation of Company (to be attached) 5 ExhibitC Company Agreement (to be attached) 6

Filed pursuant to Rule 497(e) Registration Nos. 333-56018; 811-10303 Buffalo Emerging Opportunities Fund A series of Buffalo Funds® Supplement dated November 18, 2013 to the Prospectus dated June 3, 2013, as supplemented August 30, 2013 and October 15, 2013 Effective November 18, 2013, the Buffalo Emerging Opportunities Fund (the “Fund”), a series of Buffalo Funds, will be closed to all new accounts, including new employer sponsored retirement plans (“ESRPs”).The Fund will remain open to additional investments by all existing accounts, including, but not limited to, accounts held through investment advisors, consultants and existing ESRPs.In addition, new participants in all existing ESRPs may make investments in the Fund, and investment advisors and consultants with existing positions in the Fund can continue to make purchases for new accounts.Finally, Kornitzer Capital Management, Inc., the Fund’s investment advisor (the “Advisor”), reserves the right to make exceptions to this closure for additional ESRPs. Your financial institution may be responsible for providing information to the Fund at the time of purchase in order to verify your eligibility to purchase shares of the Fund.The Fund will not accept exchanges from other Buffalo Funds into the Fund unless it is into an existing account with the Fund.The Advisor believes that closing the Fund as described above is the best way to ensure the Fund can be effectively managed to its objective of long-term growth of capital through the purchase of companies with market capitalizations of $1 billion or less at time of purchase. The decision and timing for any future opening or closing of the Fund will be at the discretion of the Advisor.In determining whether to keep the Fund closed as described above, the Advisor will consider factors such as market volatility, net fund flows, market liquidity and company valuations. For additional details regarding restrictions on new purchases of Fund shares, please call 1-800-49-BUFFALO. Please retain this supplement with your Prospectus.

Name: Council Regulation (EEC) No 151/83 of 21 January 1983 establishing the definitive collection of the provisional anti-dumping duty on polyvinyl chloride originating in Czechoslovakia Type: Regulation Date Published: nan No L 18 /24 Official Journal of the European Communities 22. 1 . 83 COUNCIL REGULATION (EEC) No 151/83 of 21 January 1983 establishing the definitive collection of the provisional anti-dumping duty on polyvinyl chloride originating in Czechoslovakia THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 3017/79 of 20 December 1979 on production against dumped or subsidized imports from countries not members of the European Economic Community ('), as amended by Regulation (EEC) No 1 580/82 (2), and in particular Article 12 thereof, After consultations within the Advisory Committee set up pursuant to the abovementioned Regulation, Whereas in July 1981 the Commission received a complaint from the European Council of Chemical Manufacturers' Federation (CEFIC) on behalf of 24 producers of polyvinyl chloride resins and compounds, representing almost the whole of the Community industry, asking it to initiate an anti-dumping procee ­ ding ; Whereas the complaint contained sufficient evidence that like products originating in Czechoslovakia, the German Democratic Republic, Hungary and Romania were being dumped, and that material injury was being caused thereby ; whereas the Commission accordingly announced by a notice published in the Official Journal of the European Communities (3), the initia ­ tion of a proceeding in respect of imports of polyvinyl chloride (NIMEXE codes ex 39.02-41 and ex 39.02-43) originating in Czechoslovakia, the German Democ ­ ratic Republic , Hungary and Romania and started an investigation on the matter at Community level ; Whereas a preliminary examination of the facts revealed that dumping was taking place and provided sufficient evidence that material injury was being caused thereby to the Community industry concerned ; whereas the Commission thereupon informed the exporters concerned of the need to adopt protective measures ; whereas, in view of the above findings, the exporters in the German Democratic Republic, Hungary and Romania offered undertakings which were accepted by the Commission ; whereas by Regulation (EEC) No 2568/82 (4) the Commission therefore terminated the proceeding in respect of the above countries and imposed a provisional anti ­ dumping duty of 1 2 % on imports of polyvinyl chlo ­ ride originating in Czechoslovakia ; Whereas pursuant to Article 3 of the said Regulation the Commission gave the parties concerned an oppor ­ tunity, within one month of the entry into force of the provisional duty and without prejudice to Article 7 (4) (b) and (c) of Regulation (EEC) No 3017/79, to make known their views and apply to be heard orally by the Commission ; whereas the exporter and a number of the importers concerned availed themselves of this opportunity and made known their views both in writing and orally ; whereas the Commission examined carefully the arguments put forward and found no reason to amend the provisionally determined weighted average dumping margin ; Whereas, as regards the question of injury, the Commission has received no information since the adoption of Regulation (EEC) No 2568/82 which would require any revision of its conclusions formu ­ lated in the said Regulation ; Whereas, after being informed of these findings, the Czech exporter, Petrimex, Bratislava, offered a price undertaking which seems sufficient to eliminate in the future the injurious effects of those exports ; Whereas the proceeding may therefore be terminated without the imposition of a definitive anti-dumping duty ; Whereas, as far as dumping by the Czech exporter and the material injury to the Community industry in question are concerned, the protection of the interests of the Community nevertheless call for the definitive collection of the provisional anti-dumping duty ; Whereas, as polyvinyl chloride manufactured by the emulsion process was not covered by the proceeding, it is appropriate to release those amounts which can be shown to have been levied as the provisional anti ­ dumping duty on imports of that product originating in Czechoslovakia, (') OJ No L 339, 31 . 12 . 1979, p. 1 . (2) OJ No L 178 , 22 . 6 . 1982, p. 9 . 3) OJ No C 332, 19 . 12. 1981 , p. 2 . (4) OJ No L 274, 24 . 9 . 1982, p. 15 . 22 . 1 . 83 Official Journal of the European Communities No L 18/25 HAS ADOPTED THIS REGULATION : 2. Securities lodged in respect of imports of poly ­ vinyl chloride manufactured by the emulsion process shall be released provided that the said method of manufacture is recorded in the customs documents submitted on importation . Article 2 This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. Article 1 1 . The amounts secured by way of provisional anti ­ dumping duty, pursuant to Regulation (EEC) No 2568 /82, on imports of polyvinyl chloride, other than that manufactured by the emulsion process, origina ­ ting in Czechoslovakia, shall be definitively collected. This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels , 21 January 1983 . For the Council The President H.W. LAUTENSCHLAGER

          MULTIFAMILY NOTE US $7,800,000.00 March 31, 2011 FOR VALUE RECEIVED, the undersigned ("Borrower") jointly and severally (if more than one) promises to pay to the order of KEYCORP REAL ESTATE CAPITAL MARKETS, INC., an Ohio corporation, the principal sum of Seven Million Eight Hundred Thousand and No/100 Dollars (US $7,800,000.00), with interest accruing at the Interest Rate on the unpaid principal balance from the Disbursement Date until fully paid. 1.           Defined Terms.  In addition to defined terms found elsewhere in this Note, as used in this Note, the following definitions shall apply:   Amortization Period:  360 months. Business Day:  Any day other than a Saturday, Sunday or any other day on which Lender is not open for business. Debt Service Amounts:  Amounts payable under this Note, the Security Instrument or any other Loan Document. Default Rate:  A rate equal to the lesser of 4 percentage points above the Interest Rate or the maximum interest rate which may be collected from Borrower under applicable law. Disbursement Date:  The date of disbursement of Loan proceeds hereunder. First Payment Date:  The first day of May, 2011. Indebtedness: The principal of, interest on, or any other amounts due at any time under, this Note, the Security Instrument or any other Loan Document, including prepayment premiums, late charges, default interest, and advances to protect the security of the Security Instrument under Section 12 of the Security Instrument.   Interest Rate:  The annual rate of six and forty-three hundredths percent (6.43%). Lender: The holder of this Note. Loan: The loan evidenced by this Note. Loan Term:  120 months. Maturity Date:  The first day of April, 2021, or any earlier date on which the unpaid principal balance of this Note becomes due and payable by acceleration or otherwise. Property Jurisdiction:  The jurisdiction in which the Land is located.   Multifamily Non-Recourse Fixed Rate Note – Louisiana Form 4119 Page 1 Fannie Mae 08-09 © 1997-2009 Fannie Mae   Security Instrument:  A multifamily mortgage, deed to secure debt or deed of trust dated as of the date of this Note. Yield Maintenance Period Term or Prepayment Premium Period Term:  114 months. Yield Maintenance Period End Date or Prepayment Premium Period End Date:  The last day of September, 2020. Event of Default, Key Principal and other capitalized terms used but not defined in this Note shall have the meanings given to such terms in the Security Instrument. 2.           Address for Payment.  All payments due under this Note shall be payable at P.O. Box 145404, Cincinnati, Ohio 45250, or such other place as may be designated by written notice to Borrower from or on behalf of Lender. 3.           Payment of Principal and Interest.  Principal and interest shall be paid as follows: (a)          Short Month Interest.  If disbursement of principal is made by Lender to Borrower on any day other than the first day of the month, interest for the period beginning on the Disbursement Date and ending on and including the last day of the month in which such disbursement is made shall be payable simultaneously with the execution of this Note.     (b) Interest Computation.  Interest under this Note shall be computed on the basis of (check one only):     o     30/360.  A 360-day year consisting of twelve 30-day months.    x Actual/360.  A 360-day year.  The amount of each monthly payment made by Borrower pursuant to Paragraph 3(c) below that is allocated to interest will be based on the actual number of calendar days during such month and shall be calculated by multiplying the unpaid principal balance of this Note by the per annum Interest Rate, dividing the product by 360 and multiplying the quotient by the actual number of days elapsed during the month.  Borrower understands that the amount allocated to interest for each month will vary depending on the actual number of calendar days during such month. (c)          Monthly Installments.  Consecutive monthly installments of principal and interest, each in the amount of Forty-Eight Thousand Nine Hundred Forty-Two and 78/100 Dollars (US $48,942.78), shall be payable on the First Payment Date and on the first day of every month thereafter, until the entire unpaid principal balance evidenced by this Note is fully paid.  Any remaining principal and interest shall be due and payable on the Maturity Date.  The unpaid principal balance shall continue to bear interest after the Maturity Date at the Default Rate set forth in this Note until and including the date on which it is paid in full. (d)          Payments Before Due Date.  Any regularly scheduled monthly installment of principal and interest that is received by Lender before the date it is due shall be deemed to have been received on the due date solely for the purpose of calculating interest due.   Form 4119 Page 2 Fannie Mae 08-09   (e)           Accrued Interest.  Any accrued interest remaining past due for 30 days or more shall be added to and become part of the unpaid principal balance and shall bear interest at the rate or rates specified in this Note.  Any reference herein to "accrued interest" shall refer to accrued interest which has not become part of the unpaid principal balance.  Any amount added to principal pursuant to the Loan Documents shall bear interest at the applicable rate or rates specified in this Note and shall be payable with such interest upon demand by Lender and absent such demand, as provided in this Note for the payment of principal and interest. 4.           Application of Payments.  If at any time Lender receives, from Borrower or otherwise, any amount applicable to the Indebtedness which is less than all amounts due and payable at such time, Lender may apply that payment to amounts then due and payable in any manner and in any order determined by Lender, in Lender's discretion.  Borrower agrees that neither Lender's acceptance of a payment from Borrower in an amount that is less than all amounts then due and payable nor Lender's application of such payment shall constitute or be deemed to constitute either a waiver of the unpaid amounts or an accord and satisfaction. 5.           Security.  The Indebtedness is secured, among other things, by the Security Instrument, and reference is made to the Security Instrument for other rights of Lender concerning the collateral for the Indebtedness. 6.           Acceleration.  If an Event of Default has occurred and is continuing, the entire unpaid principal balance, any accrued interest, the prepayment premium payable under Paragraph 10, if any, and all other amounts payable under this Note and any other Loan Document shall at once become due and payable, at the option of Lender, without any prior notice to Borrower.  Lender may exercise this option to accelerate regardless of any prior forbearance. 7.           Late Charge.  If any monthly installment due hereunder is not received by Lender on or before the 10th day of each month or if any other amount payable under this Note or under the Security Instrument or any other Loan Document is not received by Lender within 10 days after the date such amount is due, counting from and including the date such amount is due, Borrower shall pay to Lender, immediately and without demand by Lender, a late charge equal to 5 percent of such monthly installment or other amount due.  Borrower acknowledges that its failure to make timely payments will cause Lender to incur additional expenses in servicing and processing the Loan and that it is extremely difficult and impractical to determine those additional expenses.  Borrower agrees that the late charge payable pursuant to this Paragraph represents a fair and reasonable estimate, taking into account all circumstances existing on the date of this Note, of the additional expenses Lender will incur by reason of such late payment.  The late charge is payable in addition to, and not in lieu of, any interest payable at the Default Rate pursuant to Paragraph 8. 8.           Default Rate.  So long as any monthly installment or any other payment due under this Note remains past due for 30 days or more, interest under this Note shall accrue on the unpaid principal balance from the earlier of the due date of the first unpaid monthly installment or other payment due, as applicable, at the Default Rate.  If the unpaid principal balance and all accrued interest are not paid in full on the Maturity Date, the unpaid principal balance and all accrued interest shall bear interest from the Maturity Date at the Default Rate.  Borrower also acknowledges that its failure to make timely payments will cause Lender to incur additional expenses in servicing and processing the Loan, that, during the time that any monthly installment or payment under this Note is delinquent for more than 30     Form 4119 Page 3 Fannie Mae 08-09     days, Lender will incur additional costs and expenses arising from its loss of the use of the money due and from the adverse impact on Lender's ability to meet its other obligations and to take advantage of other investment opportunities, and that it is extremely difficult and impractical to determine those additional costs and expenses.  Borrower also acknowledges that, during the time that any monthly installment or other payment due under this Note is delinquent for more than 30 days, Lender's risk of nonpayment of this Note will be materially increased and Lender is entitled to be compensated for such increased risk.  Borrower agrees that the increase in the rate of interest payable under this Note to the Default Rate represents a fair and reasonable estimate, taking into account all circumstances existing on the date of this Note, of the additional costs and expenses Lender will incur by reason of the Borrower's delinquent payment and the additional compensation Lender is entitled to receive for the increased risks of nonpayment associated with a delinquent loan. 9.           Limits on Personal Liability. (a)           Except as otherwise provided in this Paragraph 9, Borrower shall have no personal liability under this Note, the Security Instrument or any other Loan Document for the repayment of the Indebtedness or for the performance of any other obligations of Borrower under the Loan Documents, and Lender's only recourse for the satisfaction of the Indebtedness and the performance of such obligations shall be Lender's exercise of its rights and remedies with respect to the Mortgaged Property (as such term is defined in the Security Instrument) and any other collateral held by Lender as security for the Indebtedness. This limitation on Borrower's liability shall not limit or impair Lender's enforcement of its rights against any guarantor of the Indebtedness or any guarantor of any obligations of Borrower. (b)           Borrower shall be personally liable to Lender for the repayment of a portion of the Indebtedness equal to any loss or damage suffered by Lender as a result of: (1)           failure of Borrower to pay to Lender upon demand after an Event of Default, all Rents to which Lender is entitled under Section 3(a) of the Security Instrument and the amount of all security deposits collected by Borrower from tenants then in residence; (2)           failure of Borrower to apply all insurance proceeds and condemnation proceeds as required by the Security Instrument; (3)           failure of Borrower to comply with Section 14(d) or (e) of the Security Instrument relating to the delivery of books and records, statements, schedules and reports; (4)           fraud or written material misrepresentation by Borrower, Key Principal or any officer, director, partner, member or employee of Borrower in connection with the application for or creation of the Indebtedness or any request for any action or consent by Lender; (5)           failure to apply Rents, first, to the payment of reasonable operating expenses (other than Property management fees that are not currently payable pursuant to the terms of an Assignment of Management Agreement or any other agreement with Lender executed in connection with the Loan) and then to Debt Service Amounts, except that Borrower will not be personally liable (i) to the extent that Borrower lacks the legal right to direct the disbursement of such sums because of a bankruptcy, receivership or similar judicial proceeding, or (ii) with     Form 4119 Page 4 Fannie Mae 08-09   respect to Rents that are distributed in any calendar year if Borrower has paid all operating expenses and Debt Service Amounts for that calendar year; or (6)           failure by Borrower to comply with the provisions of Section 17(a) of the Security Instrument. (c)           Borrower shall become personally liable to Lender for the repayment of all of the Indebtedness upon the occurrence of any of the following Events of Default: (1)            Borrower’s acquisition of any property or operation of any business not permitted by Section 33 of the Security Instrument; (2)            a Transfer that is an Event of Default under Section 21 of the Security Instrument; or (3)           the occurrence of a Bankruptcy Event (but only if the Bankruptcy Event occurs with the consent, encouragement or active participation of Borrower, Key Principal or any Borrower Affiliate). (d)           To the extent that Borrower has personal liability under this Paragraph 9, Lender may exercise its rights against Borrower personally without regard to whether Lender has exercised any rights against the Mortgaged Property or any other security, or pursued any rights against any guarantor, or pursued any other rights available to Lender under this Note, the Security Instrument, any other Loan Document or applicable law. For purposes of this Paragraph 9, the term "Mortgaged Property" shall not include any funds that (1) have been applied by Borrower as required or permitted by the Security Instrument prior to the occurrence of an Event of Default, or (2) Borrower was unable to apply as required or permitted by the Security Instrument because of a bankruptcy, receivership, or similar judicial proceeding. 10.           Voluntary and Involuntary Prepayments. (a)           A prepayment premium shall be payable in connection with any prepayment made under this Note as provided below: (1)      Borrower may voluntarily prepay all (but not less than all) of the unpaid principal balance of this Note only on the last calendar day of a calendar month (the "Last Day of the Month") and only if Borrower has complied with all of the following: (i)   Borrower must give Lender at least 30 days (if given via U.S. Postal Service) or 20 days (if given via facsimile, email or overnight courier), but not more than 60 days, prior written notice of Borrower's intention to make a prepayment (the "Prepayment Notice").  The Prepayment Notice shall be given in writing (via facsimile, email, U.S. Postal Service or overnight courier) and addressed to Lender.  The Prepayment Notice shall include, at a minimum, the Business Day upon which Borrower intends to make the prepayment (the "Intended Prepayment Date").   Form 4119 Page 5 Fannie Mae 08-09   (ii)   Borrower acknowledges that the Lender is not required to accept any voluntary prepayment of this Note on any day other than the Last Day of the Month even (A) if Borrower has given a Prepayment Notice with an Intended Prepayment Date other than the Last Day of the Month or (B) if the Last Day of the Month is not a Business Day.  Therefore, even if Lender accepts a voluntary prepayment on any day other than the Last Day of the Month, for all purposes (including the accrual of interest and the calculation of the prepayment premium), any prepayment received by Lender on any day other than the Last Day of the Month shall be deemed to have been received by Lender on the Last Day of the Month and any prepayment calculation will include interest to and including the Last Day of the Month in which such prepayment occurs.  If the Last Day of the Month is not a Business Day, then the Borrower must make the payment on the Business Day immediately preceding the Last Day of the Month. (iii)   Any prepayment shall be made by paying (A) the amount of principal being prepaid, (B) all accrued interest (calculated to the Last Day of the Month), (C) all other sums due Lender at the time of such prepayment, and (D) the prepayment premium calculated pursuant to Schedule A. (iv)   If, for any reason, Borrower fails to prepay this Note (A) within five (5) Business Days after the Intended Prepayment Date or (B) if the prepayment occurs in a month other than the month stated in the original Prepayment Notice, then Lender shall have the right, but not the obligation, to recalculate the prepayment premium based upon the date that Borrower actually prepays this Note and to make such calculation as described in Schedule A attached hereto.  For purposes of such recalculation, such new prepayment date shall be deemed the "Intended Prepayment Date." (2)           Upon Lender's exercise of any right of acceleration under this Note, Borrower shall pay to Lender, in addition to the entire unpaid principal balance of this Note outstanding at the time of the acceleration, (i) all accrued interest and all other sums due Lender under this Note and the other Loan Documents, and (ii) the prepayment premium calculated pursuant to Schedule A. (3)           Any application by Lender of any collateral or other security to the repayment of any portion of the unpaid principal balance of this Note prior to the Maturity Date and in the absence of acceleration shall be deemed to be a partial prepayment by Borrower, requiring the payment to Lender by Borrower of a prepayment premium. (b)           Notwithstanding the provisions of Paragraph 10(a), no prepayment premium shall be payable (1) with respect to any prepayment occurring as a result of the application of any insurance proceeds or condemnation award under the Security Instrument, or (2) as provided in subparagraph (c) of Schedule A. (c)           Schedule A is hereby incorporated by reference into this Note.   Form 4119 Page 6 Fannie Mae 08-09   (d)           Any required prepayment of less than the entire unpaid principal balance of this Note shall not extend or postpone the due date of any subsequent monthly installments or change the amount of such installments, unless Lender agrees otherwise in writing. (e)           Borrower recognizes that any prepayment of the unpaid principal balance of this Note, whether voluntary or involuntary or resulting from a default by Borrower, will result in Lender's incurring loss, including reinvestment loss, additional expense and frustration or impairment of Lender's ability to meet its commitments to third parties.  Borrower agrees to pay to Lender upon demand damages for the detriment caused by any prepayment, and agrees that it is extremely difficult and impractical to ascertain the extent of such damages.  Borrower therefore acknowledges and agrees that the formula for calculating prepayment premiums set forth on Schedule A represents a reasonable estimate of the damages Lender will incur because of a prepayment. (f)           Borrower further acknowledges that the prepayment premium provisions of this Note are a material part of the consideration for the loan evidenced by this Note, and acknowledges that the terms of this Note are in other respects more favorable to Borrower as a result of the Borrower's voluntary agreement to the prepayment premium provisions. 11.           Costs and Expenses.  Borrower shall pay on demand all expenses and costs, including fees and out-of-pocket expenses of attorneys and expert witnesses and costs of investigation, incurred by Lender as a result of any default under this Note or in connection with efforts to collect any amount due under this Note, or to enforce the provisions of any of the other Loan Documents, including those incurred in post-judgment collection efforts and in any bankruptcy proceeding (including any action for relief from the automatic stay of any bankruptcy proceeding) or judicial or non-judicial foreclosure proceeding. 12.           Forbearance.  Any forbearance by Lender in exercising any right or remedy under this Note, the Security Instrument, or any other Loan Document or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of that or any other right or remedy.  The acceptance by Lender of any payment after the due date of such payment, or in an amount which is less than the required payment, shall not be a waiver of Lender's right to require prompt payment when due of all other payments or to exercise any right or remedy with respect to any failure to make prompt payment.  Enforcement by Lender of any security for Borrower's obligations under this Note shall not constitute an election by Lender of remedies so as to preclude the exercise of any other right or remedy available to Lender. 13.           Waivers.  Presentment, demand, notice of dishonor, protest, notice of acceleration, notice of intent to demand or accelerate payment or maturity, presentment for payment, notice of nonpayment, grace, and diligence in collecting the Indebtedness are waived by Borrower, Key Principal, and all endorsers and guarantors of this Note and all other third party obligors. 14.           Loan Charges.  Borrower agrees to pay an effective rate of interest equal to the sum of the Interest Rate provided for in this Note and any additional rate of interest resulting from any other charges of interest or in the nature of interest paid or to be paid in connection with the loan evidenced by this Note and any other fees or amounts to be paid by Borrower pursuant to any of the other Loan Documents.  Neither this Note nor any of the other Loan Documents shall be construed to create a contract for the use, forbearance or detention of money requiring payment of interest at a rate greater     Form 4119 Page 7 Fannie Mae 08-09   than the maximum interest rate permitted to be charged under applicable law.  If any applicable law limiting the amount of interest or other charges permitted to be collected from Borrower in connection with the Loan  is interpreted so that any interest or other charge provided for in any Loan Document, whether considered separately or together with other charges provided for in any other Loan Document, violates that law, and Borrower is entitled to the benefit of that law, that interest or charge is hereby reduced to the extent necessary to eliminate that violation.  The amounts, if any, previously paid to Lender in excess of the permitted amounts shall be applied by Lender to reduce the unpaid principal balance of this Note.  For the purpose of determining whether any applicable law limiting the amount of interest or other charges permitted to be collected from Borrower has been violated, all Indebtedness that constitutes interest, as well as all other charges made in connection with the Indebtedness that constitute interest, shall be deemed to be allocated and spread ratably over the stated term of the Note.  Unless otherwise required by applicable law, such allocation and spreading shall be effected in such a manner that the rate of interest so computed is uniform throughout the stated term of the Note. 15.           Commercial Purpose.  Borrower represents that the Indebtedness is being incurred by Borrower solely for the purpose of carrying on a business or commercial enterprise, and not for personal, family or household purposes. 16.           Counting of Days.  Except where otherwise specifically provided, any reference in this Note to a period of "days" means calendar days, not Business Days. 17.           Governing Law.  This Note shall be governed by the law of the jurisdiction in which the Land is located. 18.           Captions.  The captions of the paragraphs of this Note are for convenience only and shall be disregarded in construing this Note. 19.           Notices.  All notices, demands and other communications required or permitted to be given by Lender to Borrower pursuant to this Note shall be given in accordance with Section 31 of the Security Instrument. 20.           Consent to Jurisdiction and Venue.   Borrower and Key Principal each agrees that any controversy arising under or in relation to this Note shall be litigated exclusively in the Property Jurisdiction.  The state and federal courts and authorities with jurisdiction in the Property Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in relation to this Note.  Borrower and Key Principal each irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise. 21.           WAIVER OF TRIAL BY JURY.  BORROWER, KEY PRINCIPAL AND LENDER EACH (A) AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS NOTE OR THE RELATIONSHIP BETWEEN THE PARTIES AS LENDER, KEY PRINCIPAL AND BORROWER THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE.  THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.   Form 4119 Page 8 Fannie Mae 08-09   ATTACHED SCHEDULES.  The following Schedules are attached to this Note:    |X|   Schedule A     |X|   Schedule B Modifications to Multifamily Note (Seniors Housing)   (Signature Pages Attached)   Form 4119 Page 9 Fannie Mae 08-09   IN WITNESS WHEREOF, Borrower has signed and delivered this Note or has caused this Note to be signed and delivered by its duly authorized representative.   BORROWER       EMERIMANDEVILLE LLC, a Delaware limited liability company       By:  Emeritus Corporation, a Washington corporation   Its:   Sole Member               By:   /s/ Eric Mendelsohn             Name:   Eric Mendelsohn   Title:     Senior Vice President Corporate Development     FANNIE MAE COMMITMENT NO. 864445   Form 4119 Page 10 Fannie Mae 08-09     PAY TO THE ORDER OF FANNIE MAE WITHOUT RECOURSE. KEYCORP REAL ESTATE CAPITAL MARKETS, INC., an Ohio corporation By:           /s/ Crystal L. Williams                                                                 Name:      Crystal L. Williams Title:        Vice President Date:           March 31, 2011   Form 4119 Page 11 Fannie Mae 08-09   SCHEDULE A PREPAYMENT PREMIUM Any prepayment premium payable under Paragraph 10 of this Note shall be computed as follows:   (a) If the prepayment is made at any time after the date of this Note and before the Yield Maintenance Period End Date, the prepayment premium shall be the greater of:   (i)   (ii) The product obtained by multiplying:   (A) the amount of principal being prepaid,   by       (B) the difference obtained by subtracting from the Interest Rate on this Note the Yield Rate (as defined below), on the twenty-fifth Business Day preceding (x) the Intended Prepayment Date, or (y) the date Lender accelerates the Loan or otherwise accepts a prepayment pursuant to Paragraph 10(a)(3) of this Note,   by   (C) the present value factor calculated using the following formula: 1 - (1 + r)-n/12 r [r =           Yield Rate    n = the number of months remaining between (1) either of the following: (x) in the case of a voluntary prepayment, the Last Day of the Month during which the prepayment is made, or (y) in any other case, the date on which Lender accelerates the unpaid principal balance of this Note and (2) the Yield Maintenance Period End Date.   Form 4119 Page A-1 Fannie Mae 08-09   For purposes of this clause (ii), the “Yield Rate” means the yield calculated by interpolating the yields for the immediately shorter and longer term U.S. “Treasury constant maturities” (as reported in the Federal Reserve Statistical Release H.15 Selected Interest Rates (the "Fed Release") under the heading "U.S. government securities") closest to the remaining term of the Yield Maintenance Period Term, as follows (rounded to three decimal places): [(a-b) /(x-y) x (z-y)] + b     a = the yield for the longer U.S. Treasury constant maturity   b = the yield for the shorter U.S. Treasury constant maturity   x = the term of the longer U.S. Treasury constant maturity   y = the term of the shorter U.S. Treasury constant maturity   z = “n” (as defined in the present value factor calculation above) divided by 12. Notwithstanding any provision to the contrary, if “z” equals a term reported under the U.S. “Treasury constant maturities” subheading in the Fed Release, the yield for such term shall be used, and interpolation shall not be necessary.  If publication of the Fed Release is discontinued by the Federal Reserve Board, Lender shall determine the Yield Rate from another source selected by Lender.  Any determination of the Yield Rate by Lender will be binding absent manifest error.]   (b) If the prepayment is made on or after the Yield Maintenance Period End Date but before the last calendar day of the 4th month prior to the month in which the Maturity Date occurs, the prepayment premium shall be 1% of the amount of principal being prepaid.   (c) Notwithstanding the provisions of Paragraph 10(a) of this Note, no prepayment premium shall be payable with respect to any prepayment made on or after the last calendar day of the 4th month prior to the month in which the Maturity Date occurs.   ___EM__________________ Borrower Initials   Form 4119 Page A-2 Fannie Mae 08-09   SCHEDULE B   MODIFICATIONS TO NOTE (Seniors Housing) The following modifications are made to the text of the Note that precedes this Schedule: 1.   Section 9(b)(3) of the Note is hereby amended to read as follows: "Failure of Borrower to comply with Sections 14(d) or 14(e) of the Security Instrument relating to the delivery of books and records, statements, schedules, and reports." 2.   Section 9(b) of the Note is hereby amended to delete the word "or" immediately preceding paragraph (6) thereof and to insert a semi-colon in lieu of the period and the word "or", and add the following paragraph (7) at the end thereof: "or (7) Borrower's failure to cause the renewal, continuation, extension or maintenance of all Licenses required to legally operate the Mortgaged Property as a Seniors Housing Facility, as defined in the Security Instrument."           3. All capitalized terms used in this Schedule not specifically defined herein shall have the meanings set forth in the text of the Note that precedes this Schedule. BORROWER'S INITIALS: ____EM_________     Form 4119 Page B-1 Fannie Mae 08-09

EXHIBIT 99.1 Canadian Derivatives Clearing Corporation Index and ETF options Name of Underlying Instrument Option Symbol Underlying Symbol BMO Dow Jones Canada Titans 60 Index ETF ZCN ZCN Claymore Global Agriculture ETF COW COW Claymore Gold Bullion ETF CGL CGL Claymore Natural Gas Commodity ETF GAS GAS Horizons BetaPro NYMEX Crude Oil Bear Plus ETF HOD HOD Horizons BetaPro NYMEX Crude Oil Bull Plus ETF HOU HOU Horizons BetaPro NYMEX Natural Gas Bear Plus ETF HND HND Horizons BetaPro NYMEX Natural Gas Bull Plus ETF Please refer to circular no.145-10. HNU - HNU1 HNU - HNU1 Horizons BetaPro S&P/TSX 60 Bear Plus ETF HXD HXD Horizons BetaPro S&P/TSX 60 Bull Plus ETF HXU HXU Horizons BetaPro S&P/TSX Capped Energy Bear Plus ETF HED HED Horizons BetaPro S&P/TSX Capped Energy Bull Plus ETF HEU HEU Horizons BetaPro S&P/TSX Capped Financials Bear Plus ETF HFD HFD Horizons BetaPro S&P/TSX Capped Financials Bull Plus ETF HFU HFU Horizons BetaPro S&P/TSX Global Gold Bear Plus ETF Please refer to circular no.075-10. HGD HGD Horizons BetaPro S&P/TSX Global Gold Bull Plus ETF HGU HGU Horizons BetaPro S&P/TSX 60 Inverse ETF HIX HIX iShares DEX All Corporate Bond Index Fund XCB XCB iShares DEX Short Term Bond Index Fund XSB XSB iShares Dow Jones Canada Select Dividend Index Fund XDV XDV iShares MSCI EAFE Index Fund (CAD-Hedged) XIN XIN iShares S&P 500 Index Fund (CAD-Hedged) XSP XSP iShares S&P/TSX 60 Index Fund XIU * XIU iShares S&P/TSX Capped Composite Index Fund XIC XIC iShares S&P/TSX Capped Energy Index Fund XEG * XEG iShares S&P/TSX Capped Financials Index Fund XFN XFN iShares S&P/TSX Capped Information Technology Index Fund XIT XIT iShares S&P/TSX Capped Materials Index Fund XMA XMA iShares S&P/TSX Capped REIT Index Fund XRE XRE iShares S&P/TSX Global Gold Index Fund XGD * XGD S&P/TSX 60 Index Options SXO TX60 Equity options Name of Underlying Instrument Option Symbol Underlying Symbol Advantage Oil & Gas Ltd. AAV AAV Aecon Group Inc. ARE ARE AGF Management Ltd. AGF AGF.B Agnico-Eagle Mines Limited AEM AEM Agrium Inc. AGU * AGU Alamos Gold Inc. AGI AGI Alexco Resource Corp. AXR AXR Alimentation Couche Tard Inc. ATD ATD.B Allied Nevada Gold Corp. ANV ANV AltaGas Ltd. ALA ALA Anatolia Minerals Development Limited ANO ANO Angle Energy Inc. NGL NGL ARC Resources Ltd. ARX ARX Astral Media Inc. ACM ACM.A Athabasca Oil Sands Corp. ATH ATH Atlantic Power Corporation ATP ATP ATS Automation Tooling Systems Inc. ATA ATA Aura Minerals Inc. ORA ORA Aurizon Mines Ltd. ARZ ARZ Ballard Power Systems Inc. BLD BLD -2- Name of Underlying Instrument Option Symbol Underlying Symbol Bank of Montreal BMO * BMO Bank of Nova Scotia (The) BNS * BNS Bankers Petroleum Ltd. BNK BNK Barrick Gold Corporation ABX * ABX Baytex Energy Corp. BTE BTE BCE Inc. BCE * BCE Birchcliff Energy Limited BIR BIR BlackPearl Resources Inc. PXX PXX Bombardier Inc. BBD * BBD.B Bonavista Energy Corporation BNP BNP Breakwater Resources Ltd. BWR BWR Brookfield Asset Man. Inc. Cl. A BAM BAM.A Brookfield Properties Corp. BPO BPO CAE Inc. CAE CAE Calloway Real Estate Investment Trust CWT CWTu Cameco Corporation CCO * CCO Canadian Apartment Properties Real Estate Investment Trust CAR CARu Canadian Imperial Bank of Commerce CM * CM Canadian National Railway Company CNR * CNR Canadian Natural Resources Limited CNQ * CNQ Canadian Oil Sands Trust COS COS Canadian Pacific Railway Limited CP CP Canadian Tire Corp. Ltd CTC CTC.A Canadian Utilities CU CU Canadian Western Bank CWB CWB Canfor Corporation CFP CFP Canyon Services Group Inc. FRC FRC Capital Power Corporation CPX CPX Cardiome Pharma Corp COM COM Cascades Inc. CAS CAS Celestica Inc. CLS * CLS Celtic Exploration Ltd. CLT CLT Cenovus Energy Inc. CVE CVE Centerra Gold Inc. CG * CG CGI Inc. (Group) GIB GIB.A Chartwell Seniors Housing Real Estate Investment Trust CSH CSHu -3- Name of Underlying Instrument Option Symbol Underlying Symbol China Gold International Resources Corp. Ltd CGG CGG Chorus Aviation Inc. CHR CHR.B CI Financial Inc. CIX CIX CML HealthCare Inc. CLC CLC Coeur d'Alene Mines Corporation CDM CDM Cogeco Cable Inc. CCA CCA Colossus Minerals Inc. CSI CSI Consolidated Thompson Iron Mines Ltd. CLM CLM Continental Gold Limited CNL CNL Copper Mountain Mining Corporation CUM CUM Corridor Resources Inc. CDH CDH CORUS Entertainment Inc. CJR CJR.B Cott Corp. BCB BCB Crescent Point Energy Corp. CPG CPG Crew Energy Incorporated CR CR Daylight Energy Ltd. DAY DAY Detour Gold Corp. DGC DGC Dollarama Inc. DOL DOL Domtar Corporation UFS UFS DragonWave Inc. DWI DWI Dundee Corporation DC DC.A Dundee Precious Metals Inc. DPM DPM Eldorado Gold Corp. ELD * ELD Emera Inc. EMA EMA Enbridge Inc. ENB * ENB EnCana Corporation ECA * ECA Endeavour Silver Corp. EDR EDR Enerplus Resources Fund ERF ERF Ensign Energy Services Inc. ESI ESI Equinox Minerals Ltd. EQN EQN European Goldfields Ltd. EGU * EGU Exeter Resource Corporation XRC XRC Extendicare Real Estate Investment Trust EXE EXEu Fairborne Energy Ltd. FEL FEL Finning International Inc. FTT FTT First Capital Realty Inc. FCR FCR First Majestic Silver Corp. FR FR First Quantum Minerals FM FM -4- Name of Underlying Instrument Option Symbol Underlying Symbol Fortis Inc. FTS FTS Franco Nevada FNV FNV Fronteer Development Group Inc. FRG FRG Gabriel Resources Ltd. GBU GBU Galleon Energy Inc. GO GO Gammon Gold Inc. GAM GAM Garda World Security Corporation GW GW Genworth MI Canada Inc. MIC MIC George Weston Limited WN WN Gildan Activewear Inc. GIL GIL GMP Capital Inc. GMP GMP Goldcorp Inc. G * G Golden Star Resources Ltd. GSC GSC Gran Tierra Energy Inc. GTE GTE Grande Cache Coal Corporation GCE GCE Great Canadian Gaming Corporation GC GC Great-West Lifeco Inc. GWO GWO Greystar Resources Ltd. GSL GSL Groupe Aeroplan Inc. AER AER Guyana Goldfields Inc. GUY GUY H&R Real Estate Investment Trust HR HR u Harry Winston Diamond Corp. HW HW HudBay Minerals Inc. HBM HBM Husky Energy Inc. HSE * HSE IAMGOLD Corporation IMG IMG IESI-BFC Ltd. BIN BIN IGM Financial Inc. IGM IGM IMAX Corporation IMX IMX Imperial Oil Limited IMO IMO Industrial Alliance Insurance and Financial Services Inc. IAG IAG Inmet Mining Corporation IMN IMN Intact Financial Corporation IFC IFC International Tower Hill Mines Ltd. ITH ITH Ivanhoe Mines Ltd. Please refer to circular no.170-10. IVN IVN Jaguar Mining Inc. JAG JAG Just Energy Group Inc. JE JE -5- Name of Underlying Instrument Option Symbol Underlying Symbol Keegan Resources Inc. KGN KGN Kinross Gold Corporation K * K Kirkland Lake Gold Inc. KGI KGI Legacy Oil + Gas Inc. LEG LEG Loblaw Companies Ltd. L L Lululemon Athletica Inc. LLL LLL Lundin Mining Corp. LUN LUN Magna International Inc MG MG Manitoba Telecom Services Inc. MBT MBT Manulife Financial Corporation MFC * MFC Methanex Corporation MX MX METRO INC. MRU MRU.A Migao Corporation MGO MGO Minefinders Corporation Ltd. MFL MFL Mullen Group Ltd. MTL MTL NAL Oil & Gas Trust NAE NAE National Bank of Canada NA * NA Neo Material Technologies Inc. NEM NEM Nevsun Resources Ltd. NSU NSU New Gold Inc. NGD NGD Nexen Inc. NXY * NXY Niko Resources Ltd. NKO NKO Nordion Inc. NDN NDN North American Palladium Ltd. PDL PDL NovaGold Resources Inc. NG NG NuVista Energy Limited NVA NVA Onex Corp. OCX OCX Open Text Corp OTC OTC OPTI Canada Inc. OPC OPC Osisko Mining Corp. OSK * OSK Pacific Rubiales Energy PRE * PRE Paladin Energy Ltd. PDN PDN Pan American Silver Corporation PAA PAA Paramount Resources Ltd. POU POU Pembina Pipeline Corporation PPL PPL Pengrowth Energy Trust PGF PGF Penn West Energy Trust PWT PWT Perpetual Energy Inc. PMT PMT -6- Name of Underlying Instrument Option Symbol Underlying Symbol PetroBakken Energy Ltd. PBN PBN Petrobank Energy & Resources Ltd. Please refer to circular no.171-10. PBG - PBG1 PBG - PBG1 Petrominerales Ltd. PMG PMG Peyto Exploration & Development Corp. PEY PEY Potash Corporation of Saskatchewan POT POT Power Corporation of Canada POW POW Power Financial Corporation PWF PWF Precision Drilling Trust PD PD Premier Gold Mines Limited PG PG Primaris Retail Real Estate Investment Trust PMZ PMZu ProEx Energy Ltd. PRQ PRQ QLT Inc. QLT QLT Quadra FNX Mining Ltd. Please refer to circular no.071-10. QUX QUX Questerre Energy Corporation QEC QEC Red Back Mining Inc. Please refer to circular no.121-10. K1 * K1 Research in Motion Limited RIM RIM Resverlogix Corp. RVX RVX RioCan Real Estate Investment Trust REI REIu Ritchie Bros. Auctioneers Incorporated RBA RBA Rogers Communications Inc. RCI * RCI.B Rona Inc. RON RON Royal Bank of Canada RY * RY Royal Gold, Inc. RGL RGL Rubicon Minerals Corp. RMX RMX Russel Metals Inc. RUS RUS Sabina Gold & Silver Corp. SBB SBB Saputo SAP SAP Seabridge Gold Inc. SEA SEA SEMAFO INC. SMF SMF Shaw Communications Inc. SJR SJR.B Sherritt International Corporation S S Shoppers Drug Mart SC * SC Sierra Wireless Inc. SW SW Silver Standard Resources Inc. SSO SSO Silver Wheaton Corp. SLW SLW Silvercorp Metals Inc. SVM SVM -7- Name of Underlying Instrument Option Symbol Underlying Symbol Sino-Forest Corporation TRE TRE SNC-Lavalin Group Inc. SNC SNC Sprott Resource Corp. SCP SCP Sun Life Financial SLF * SLF Suncor Energy Inc. SU * SU Superior Plus Corp. SPB SPB SXC Health Solutions Corp. SXC SXC Talisman Energy Inc. TLM * TLM Tanzanian Royalty Exploration Corporation TNX TNX Taseko Mines Limited TKO TKO Teck Resources Limited. Cl. B TCK * TCK.B TELUS Corporation T * T The Jean Coutu Group (PJC) Inc. PJC PJC.A Theratechnologies Inc. TH TH Thompson Creek Metals Company Inc. TCM TCM Thomson Reuters Corporation TRI TRI Tim Hortons THI THI TMX Group Inc. X X Toromont Industries Ltd. TIH TIH Toronto-Dominion Bank (The) TD * TD TransAlta Corporation TA TA TransCanada Corporation TRP * TRP Transcontinental Inc. TCL TCL.A TransForce Inc. TFI TFI TransGlobe Energy Corporation TGL TGL Trican Well Services Inc. TCW TCW Trilogy Energy Corp. TET TET Trinidad Drilling Ltd. TDG TDG Uranium One Inc. Please refer to circular no.162-10. UUU - UUU1 UUU - UUU1 Uranium Participation Corp. U U Valeant Pharmaceuticals International, Inc. Please refer to circular no.150-10. VRX - VRX2 VRX - VRX2 Ventana Gold Corp. VEN VEN Vermilion Energy Inc. VET VET Vero Energy Inc. VRO VRO Viterra Inc. VT VT Western Coal Corp. WTN WTN -8- Name of Underlying Instrument Option Symbol Underlying Symbol WestJet Airlines Ltd. WJA WJA Westport Innovations Inc. WPT WPT Wi-LAN Inc. WIN WIN Yamana Gold Inc. YRI * YRI Yellow Media Inc. YLO YLO Currency options Name of Underlying Instrument Option Symbol Underlying Symbol Options on the US Dollar USX N/A -9-

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-1/A Amendment No. 3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SOUTHERN STATES SIGN COMPANY (Exact name of Registrant as specified in its charter) Nevada 26-3014345 (State or other jurisdiction ofincorporation or organization) (Primary Standard Industrial Classification Code Number) (I.R.S. EmployerIdentification Number) 7231 S. Eastern Ave., Suite B-127 Las Vegas, Nevada (Name and address of principal executive offices) (Zip Code) Registrant's telephone number, including area code:(702) 496-5888 David Ben Bassat 7231 S. Eastern Ave., Suite B-127 Las Vegas, Nevada (Name and address of agent for service of process) (Zip Code) Telephone number of agent for service of process:(702) 496-5888 Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement. If any of the securities being registered on the Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box |X| If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.|| If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.|| If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.|| Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. Large accelerated filer ||Accelerated filer || Non-accelerated filer ||Smaller reporting company |X| CALCULATION OF REGISTRATION FEE TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED AMOUNT TO BE REGISTERED PROPOSED MAXIMUM OFFERING PRICE PER SHARE (1) PROPOSED MAXIMUM AGGREGATE OFFERING PRICE (2) AMOUNT OF REGISTRATION FEE Common Stock This price was arbitrarily determined by Southern States Sign Co. Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(a) under the Securities Act. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE. COPIES OF COMMUNICATIONS TO: Cane Clark LLP Attn: Joe Laxague 3273 East Warm Springs Rd. Las Vegas, NV 89120 Phone: (702) 312-6255 Fax: (702) 944-7100 Table of Contents PROSPECTUS SOUTHERN STATES SIGN CO. INITIAL PUBLIC OFFERING SUBJECT TO COMPLETION, Dated May 6 , 2011 Our common stock is presently not traded on any market or securities exchange.The sales price to the public is fixed at $0.01 per share until such time as the shares of our common stock are quoted on the Over-The-Counter Bulletin Board (“OTCBB”), which is sponsored by the Financial Industry Regulatory Authority (“FINRA”). The OTCBB is a network of security dealers who buy and sell stock. The dealers are connected by a computer network that provides information on current "bids" and "asks", as well as volume information.Although we intend to apply for quotation of our common stock on the FINRA Over-The-Counter Bulletin Board through a market maker, public trading of our common stock may never materialize.In addition, there is no guarantee that a market maker will agree to file an application on our behalf.If and when such an application is filed, there is no guarantee that we will be accepted for quotation on the OTCBB. If our common stock becomes quoted on the FINRA Over-The-Counter Bulletin Board, then the sale price to the public will vary according to prevailing market prices or privately negotiated prices by the selling shareholders. Offering Price Underwriting Discounts and Commissions Proceeds to Selling Shareholders Per Share None Total None The purchase of the securities offered through this prospectus involves a high degree of risk.See section of this Prospectus entitled "Risk Factors" on page 6. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. The information in this prospectus is not complete and may be changed.We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective.The prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. Dealer Prospectus Delivery Obligation Until , all dealers that effect transactions in these securities whether or not participating in this offering may be required to deliver a prospectus. This is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions. The Date of This Prospectus Is: May 6 , 2011 2 Table of Contents Table of Contents Page Summary 5 Risk Factors 6 Risks Related To Our Financial Condition and Business Model 6 If we do not obtain additional financing, our business will fail. 6 Because we do not have any track record of prior successful billboard development and advertising sales, we may face a high risk of business failure. 6 Because our sole officer and director lacks specific experience in the area of billboard development, we may be hindered in our ability to efficiently and competitively execute our business strategy and achieve profitability. 7 Because our sole officer and director has no prior experience as the head of a public company, we may be less efficient and effective in managing certain compliance obligations and related matters. 7 Because one of our key consultants has been retained under a verbal agreement and has received payment for services to be rendered, there is a risk that timely implementation of our business plan could be impaired if the consultant is not properly incentivized to perform. 7 Because we will face intense competition in the outdoor advertising industry from larger and more established companies, we may be unable to achieve significant revenue growth over time. 7 If general economic conditions continue to deteriorate, our business prospects could be significantly harmed. 7 Because our president has only agreed to provide his services on a part-time basis, he may not be able or willing to devote a sufficient amount of time to our business operations, causing our business to fail. 8 Because we will incur additional costs as the result of becoming a public company, our cash needs will increase and our ability to achieve net profitability may be delayed. 8 Risks Related To Legal Uncertainty 9 Because we must comply with various government regulations and approval processes, our ability to successfully develop and market outdoor billboard space may be limited or delayed. 9 Risks Related To This Offering 9 If a market for our common stock does not develop, shareholders may be unable to sell their shares. 9 If the selling shareholders sell a large number of shares all at once or in blocks, the market price of our shares would most likely decline. 9 Because we will be subject to the “Penny Stock” rules the level of trading activity in our stock may be reduced. 10 If our shares are quoted on the over-the-counter bulletin board, we will be required to remain current in our filings with the SEC and our securities will not be eligible for quotation if we are not current in our filings with the SEC. 10 If and when we undertake future offerings of our common stock, purchasers in this offering will experience dilution of their ownership percentage. 10 Forward-Looking Statements 11 Use of Proceeds 11 Determination of Offering Price 11 Dilution 11 Selling Shareholders 12 Plan of Distribution 13 3 Table of Contents Description of Securities 14 Interest of Named Experts and Counsel 17 Description of Business 18 Description of Property 23 Legal Proceedings 23 Market for Common Equity and Related Stockholder Matters 24 Financial Statements 26 Management Discussion and Analysis of Financial Condition and Results of Operations 27 Changes in and Disagreements with Accountants 30 Directors and Executive Officers 30 Executive Compensation 31 Security Ownership of Certain Beneficial Owners and Management 33 Disclosure of Commission Position on Indemnification for Securities Act Liabilities 34 Certain Relationships and Related Transactions 34 Available Information 34 Dealer Prospectus Delivery Obligation 34 Other Expenses of Issuance and Distribution 35 Indemnification of Directors and Officers 35 Recent Sales of Unregistered Securities 36 Table of Exhibits 37 Undertakings 37 Signatures 38 4 Table of Contents Summary Southern States Sign Co. We were incorporated on July 15, 2008, under the laws of the state of Nevada.We are in the business of developing and leasing advertising space on commercial billboards in Southern Nevada.We are a development stage company and have not generated any revenues to date. As of November 30, 2010, we had $18,120 in current assets and current liabilities in the amount of $15,817. Accordingly, we had working capital of $2,303 as of November 30, 2010. On January 13, 2011, we received additional capital in the form of a $30,000 cash loan advanced to us by our sole officer and director, David Ben Bassat. We believe that our current cash on hand will enable us to fund our planned expenses for our fiscal year beginning December 1, 2010.Our planned expenses for the current fiscal year will consist of legal, consulting, and technical expenses related to obtaining local regulatory approval for the erection of our first billboard in Las Vegas, Nevada, as well as accounting and legal expenses related to our becoming a publicly reporting company.Our management estimates that, until such time that we are able to erect our fist billboard and generate sales revenue sufficient to pay our ongoing and planned expenditures, we will experience negative cash flow in the approximate amount of $2,500 per month. This figure is a monthly average derived from the annual operating budget for our fiscal beginning December 1, 2010. In addition, we will require additional capital in the approximate amount of $90,000 in order to construct and erect our first billboard if and when local regulatory approval is obtained.Although the erection of our first billboard is currently planned for the early part of our fiscal year beginning December 1, 2011, we currently do not have any arrangements for financing and we may not be able to obtain financing when required. Investors should be aware that we will be subject to the “Penny Stock” rules adopted by the Securities and Exchange Commission, which regulate broker-dealer practices in connection with transactions in Penny Stocks.These regulations may have the effect of reducing the level of trading activity, if any, in the secondary market for our stock, and investors in our common stock may find it difficult to sell their shares.Please see the disclosures under “Market For Common Equity And Related Stockholder Matters” on Page 24 of this Prospectus for more information. We are not a “blank check” company and have no plans to engage in a merger or acquisition with any other company or other entity. Our address is 7231 S. Eastern Ave., Suite B-127, Las Vegas, Nevada 89119. Our phone number is (702) 496-5888.Our fiscal year end is November 30. The Offering Securities Being Offered Up to 3,000,000 shares of our common stock. Offering Price and Alternative Plan of Distribution The offering price of the common stock is $0.01 per share.We intend to apply to the FINRA over-the-counter bulletin board to allow the trading of our common stock upon our becoming a reporting entity under the Securities Exchange Act of 1934. If our common stock becomes so quoted and a market for the stock develops, the actual price of stock will be determined by prevailing market prices at the time of sale or by private transactions negotiated by the selling shareholders.The offering price would thus be determined by market factors and the independent decisions of the selling shareholders. There is no guarantee that a market maker will agree to file a 15c211 application on our behalf.If and when such an application is filed, there is no guarantee that we will be accepted for quotation on the OTCBB. Minimum Number of Shares To Be Sold in This Offering None Securities Issued and to be Issued 18,000,000 shares of our common stock are issued and outstanding as of the date of this prospectus. All of the common stock to be sold under this prospectus will be sold by existing shareholders. There will be no increase in our issued and outstanding shares as a result of this offering. Use of Proceeds We will not receive any proceeds from the sale of the common stock by the selling shareholders. Summary Financial Information Balance Sheet Data Fiscal Year Ended November 30, 2010 (derived from audited financial information) Fiscal Year Ended November 30, 2009 (derived from audited financial information) Quarter Ended February 28, 2011 (unaudited) Cash $ $ 40,067 Total Assets $ $ 40,067 Liabilities $ $ 39,610 Total Stockholder’s Equity (Deficit)

12. Mobilising the Solidarity Fund of the European Union (

Exhibit 10.1   [g24032mmimage002.jpg]   Executive Incentive Plan   February 11, 2004     Overview   The EXACT Sciences Executive Incentive Plan has been designed to assist the Company in focusing management on the company’s short term, fiscal year objectives and incentivize performance to not just meet, but accelerate and overachieve the accomplishment of those objectives.  The plan is based on specific and measurable goals for both the company and each individual participant.  As a financial incentive, participants in the plan will have a significant percentage of their annual total compensation tied to meeting the corporate and individual objectives that have been established for the year with the opportunity to receive greater payouts for overachievement.   Methodology   The Company believes that many executive incentive programs are ineffective, particularly in early stage companies that lack clear revenue or profit metrics and formulae upon which to base performance payouts.  The reason for this is generally that the underlying goals are vague and overly subjective, if identified at all, or change without being updated.  This makes assessing performance against these “goals” difficult and awards become made on a largely subjective basis.  The end result is that management receives a cash incentive for unclear reasons, underlying critical corporate objectives remain under-achieved and after a short time the plan becomes a deferred compensation plan with “expected” cash versus “incentive” cash.  Not surprisingly, these companies often under-perform and have little or no return-on-investment to show for their incentive expense.   The Company believes that a well-constructed and managed executive incentive plan will drive both performance and shareholder value and represents an effective investment of its cash resources. To ensure this result, the EXACT plan has been designed with the following components:   Goals   Critical to the success of any incentive plan is the ability to set specific and measurable goals that are tied to key success factors for the company.  To drive performance, it is also important that these goals “stretch” the envelope at target, but are still attainable.  Finally, the goals must not be so numerous that they diminish focus.   The EXACT Executive Incentive plan involves setting goals for both the Company and for each executive individually.  The Board of Directors reviews and approves corporate goals for the fiscal year.   Achievement of these goals drives the corporate component of the plan.  Working with the CEO, each executive will prepare their individual functional unit goals using a similar form and will be a key basis for any cash payments under the plan.   It is also important to recognize that EXACT Sciences is still an early stage company and may be subject to some volatility.  Plans and goals may change dynamically and need to be updated.  Also, achievements of great worth may occur that were not initially envisioned, but which nonetheless prove to be very important.  These factors will also be considered as the plan and performance against functional goals is reviewed at year-end.   1   Performance Assessment   Each quarter, the Board of Directors will review corporate performance against goals and the Compensation Committee will review individual performance.  After the end of each fiscal year, the Compensation Committee working with the full Board will make a determination of the level of corporate performance for the year.  At the individual executive level, performance will be assessed by the CEO with recommendations made to the Compensation Committee for approval.  CEO performance will be determined by the Compensation Committee and the Board of Directors.   Individual performance is determined both against written functional area goals and by subjective performance assessment.   Payouts   In order to achieve any payouts under the plan, it is first necessary for the company to hit at least 70% of its corporate goals.  Upon achieving this threshold, payouts are then divided into two distinct, but related components.   Individual Performance   For assessment, individual performance that qualifies for a payout under the plan is divided into three levels: Outstanding, Above Expectations, and Effective.  Under the plan, an individual must perform to be rewarded and no incentive payouts will be made to individuals who do not achieve at least an effective level of performance regardless of the level of corporate performance.   Payouts for individual performance are generally made in cash according the following matrix:   Performance Level               Individual   CEO   EVP   VP   Outstanding   $60-$70   $40-$50   $30-$35                   Above   $50-$55     $20-$25                   Effective   $15-$35   $7.5-$25   $5-$15     * all amounts in ‘000’s   Corporate Performance   For assessment, corporate performance that qualifies for a payout under the plan is divided into three levels of 70%, 85% or 100% of goals achieved.   The Compensation Committee may recommend to the full Board to vary payout formulae to reflect corporate accomplishments if they determine appropriate.   Payouts for corporate performance will generally be made in common stock.  The amount of stock granted will be based on a value calculated as a multiple of an executive’s individual cash payout according to the following matrix:   Performance Level       Corporate   Calculation for Value of Stock Grant   100%   2.5 times Individual Cash Payout           85%   2.0 times Individual Cash Payout           70%   No Multiplier of Cash Payout     2   The stock grants under this part of the plan will vest 50% immediately upon the date of the grant and, provided that the Company meets its accession rate target for the 2005 fiscal year to be set forth in the 2005 Executive Incentive Plan, 50% on the first anniversary of the grant.  The formula to calculate the number of shares to be granted on each vest date is as follows:  Total Value of Grant ÷ 2 ÷ closing price of the Corporation’s common stock on the vesting date.   There are no restrictions upon the sale of the stock except for quiet periods and other regulatory restrictions.  If an employee terminates before the second portion of the grant is vested, the unvested portion is forfeited.   If in any given year it is the decision of the management team, in concurrence with the Board, that the financial resources of the Company are inadequate to support the plan regardless of performance, payouts may be restructured using equity or deferred to such future date when financial resources can appropriately accommodate them.   Total Compensation   The following table shows the range of total compensation available under the plan:   Performance Level   CEO   EVP   VP   Corp   Individual   Cash $   Stock $   Total $   Cash $   Stock $   Total $   Cash $   Stock $   Total $       Outstanding   60-70   150-175   210-245   40-50   100-125   140-175   30-35   75-87.5   105-122.5   100%   Above   50-55   125-137.5   175-193   30-35   75-87.5   105-122.5   20-25   50-62.5   70-87.5       Effective   15-35   37.5-87.5   52.5-122.5   7.5-25   18.8-62.5   26-87.5   5-15   12.5-37.5   17.5-52.5                                                   Outstanding   60-70   120-140   180-210   40-50   80-100   120-150   30-35   60-70   90-105   85%   Above   50-55   100-110   150-165   30-35   60-70   90-105   20-25   40-50   60-75       Effective   15-35   30-70   45-105   7.5-25   15-50   22.5-75   5-15   10-30   15-45                                                   Outstanding   60-70   0   60-70   60-70   0   60-70   30-35   0   30-35   70%   Above   50-55   0   50-55   50-55   0   50-55   20-25   0   20-25       Effective   15-35   0   15-35   15-35   0   15-35   5-15   0   5-15       The following example shows a potential representative total compensation calculation for a Vice President:   Assumptions:                     Company achieves 85% of goals Individual performance is rated as Outstanding at highest end of cash payout range Common stock price on first vest date is $10.00 Common stock price on second vest date is $20.00   Cash Payout:   $35,000               Stock Payout:   $70,000 Total Value               Total Compensation:   $105,000               # of Shares Granted:   3,500 on first vest date   ($70,000 ÷ 2 ÷ $10.00)     1,750 on second vest date   ($70,000 ÷ 2 ÷ $20.00)   3 2004 Corporate Objectives   [REDACTED] tests accessioned during FY04   Clear indication of pending inclusion of fecal DNA testing into [REDACTED] screening guidelines, evidenced by [REDACTED]   Acceptance of the MCS by [REDACTED] by 12/31/04   Proof of concept of either [REDACTED] sensitivity for CRC or [REDACTED] sensitivity for clinically relevant adenomas in [REDACTED]   Reduction in the cost of the PreGen Plus assay to [REDACTED] while demonstrating no loss in performance as demonstrated by analysis of [REDACTED] previously informative cancers from stool and [REDACTED] previously identified colonoscopy negative stools   Raise at least [REDACTED] of new cash   Submit completed NCD package to CMS within 2 weeks of acceptance for publication of MCS paper    

Exhibit 10.1   STOCK PURCHASE AGREEMENT   This Stock Purchase Agreement (the "Agreement") is made as of the 5th day of June 2015 (the "Effective Date"), by and between RICHARD CHIANG, with an address at 75 Broadway Street, Suite 202, San Francisco, CA 94111, USA ("Seller"), and FERRIS HOLDING INC., a Nevada corporation and/or its assigns, with an address at 2251 North Rampart Blvd, #182, Las Vegas, NV 89128 ("Purchaser").   RECITALS   A.Seller is the record owner and holder of 10,000,000 Common Shares, par value $.0001 par value (the "Shares"), or 100% of the issued and outstanding shares of APEX 11 INC., a Delaware corporation ("Corporation"), which Corporation has 10,000,000 shares of common stock, issued and outstanding as of the date of this Agreement. B.Purchaser desires to purchase the 10,000,000 Shares from Seller, which constitutes 100% of the Corporation's issued and outstanding shares as of the date of this Agreement, and Seller desires to sell such Shares upon the terms and conditions hereinafter set forth.   AGREEMENT   NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained in this Agreement, and in order to consummate the purchase and sale of the Corporation's Shares, it is hereby agreed, as follows:   1.             PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of this Agreement, Purchaser agrees to purchase at the Closing and the Seller agrees to sell to Purchaser at the Closing, 10,000,000 of Seller's Shares for a total price of forty thousand US dollars (USD$40,000.00) (the "Purchase Price"). As of the Effective Date, Purchaser shall have wire transferred to the Seller the Purchase Price as full payment to Seller for a non-trading, fully-reporting SEC Edgar public shell company.   2.             CLOSING. The purchase and sale of the Shares shall take place on June 5, 2015. Seller will immediately deliver the following to Purchaser: (A) the certificates representing the Shares transferred hereunder, duly endorsed for transfer to the Purchaser or accompanied by appropriate stock powers, (B) the original of the Certificate of Incorporation and bylaws, (C) all corporate books and records (including all accounting records and SEC filings to date); (D) written resignations of incumbent directors and officers of the Corporation; and (E) Edgar Codes of the Corporation.   3.             REPRESENTATIONS AND WARRANTIES OF SELLER. Seller, as sole director and officer of Corporation, hereby represents and warrants to Purchaser that:    (i)Corporation is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to carry on the business it is now being conducted. Corporation and/or Seller do not require any consent and/or authorization, declaration or filing with any government or regulatory authority to undertake any actions herein;     (ii)Corporation has filed with the United States Securities and Exchange Commission ("SEC") a registration statement on Form 10-12G, which has gone effective as of the date of this Agreement.   (iii)Corporation has timely filed and is current on all reports required to be filed by it pursuant to Sections 13 and 15 of the Securities Exchange Act of 1934.      (iv)Corporation is newly formed with no financial information available other than the financial information included in its SEC filings;    1     (v)There are no legal actions, suits, arbitrations, or other administrative, legal or governmental proceedings threatened or pending against the Corporation and/or Seller or against the Seller or other employee, officer, director or stockholder of Corporation. Additionally, Seller is not aware of any facts which may/might result in or form a basis of such action, suit, arbitration or other proceeding on any basis whatsoever;   (vi)The Corporation has no subsidiaries or any direct or indirect ownership interest in any other corporation, partnership, association, firm or business in any manner;   (vii)The Corporation and/or Seller does not have in effect nor has any present intention to put into effect any employment agreements, deferred compensation, pension retirement agreements or arrangements, options arrangements, bonus or stock purchase agreements, incentive or profit—sharing plans;   (viii)No person or firm has, or will have, any right, interest or valid claim against the Corporation for any commission, fee or other compensation in connection with the sale of the Shares herein as a finder or broker or in any similar capacity as a result of any act or omission by the Corporation and/or Seller or anyone acting on behalf of the Corporation and/or Seller;   (ix)The business and operation of the Corporation has been and will be conducted in accordance with all applicable laws, rules, regulations, judgments. Neither the execution, delivery or performance of this Agreement (A) violates the Corporation's by-laws, Certificate of Incorporation, or any existing resolutions; and, (B) will cause the Corporation to lose any benefit or any right or privilege it enjoys under the Securities Act ("Act") or other applicable state securities laws;   (x)Corporation has not conducted any business and/or entered into any agreements with third-parties;   (xi)This Agreement has been duly executed and delivered by Seller, constitutes a valid and binding instrument, enforceable in accordance with its terms, and does not conflict with or result in a breach of or in violation of the terms, conditions or provisions of any agreement, mortgage, lease or other instrument or indenture to which Corporation and/or Seller a party or by which they are bound;   (xii)Seller is the legal and beneficial owner of the Shares and has good and marketable title thereto, free and clear of any liens, claims, rights and encumbrances;   (xiii)Seller warrants that the Corporation being transferred shall be transferred with no liabilities and little or no assets, and shall defend and hold Purchaser and the Corporation harmless against any action by any third party against either of them arising out of, or as a consequence of, any act or omission of Seller or the Corporation prior to, or during the closing contemplated by this contract of sale; and   (xiv)Seller will cause all current officers and directors of the Corporation to resign at the Closing.   4.             REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby represents and warrants to Seller that:     (i) Purchaser has the power and authority to execute and deliver this Agreement, to perform his obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Purchaser and constitutes a valid and binding instrument,   2       (ii) The execution, delivery and performance of this Agreement is in compliance with and does not conflict with or result in a breach of or in violation of the terms, conditions or provisions of any agreement, mortgage, lease or other instrument or indenture to which Purchaser is a party or by which Purchaser is bound;     (iii) Purchaser is purchasing the Shares solely for its own account for the purpose of investment and not with a view to, or for sale in connection with, any distribution of any portion thereof in violation of any applicable securities law.     (iv) Either:   a.The Purchaser is an "accredited investor" as defined under Rule 501 under the Securities Act; or   b.The Purchaser has been provided all information, including publicly filed reports of the Corporation, the audited annual and interim quarterly financial statements of the Corporation, and all other information publicly filed by the Corporation.     (v) Purchaser hereby agrees that such shares are restricted pursuant to Rule 144 and therefore subject to Rule 144 resale requirements.   5.             NOTICES. Notice shall be given by certified mail, return receipt requested, the date of notice being deemed the date of postmarking. Notice, unless either party has notified the other of an alternative address as provided hereunder, shall be sent to the address as set forth herein:   Seller: RICHARD CHIANG APEX 11 Inc. President & Director 75 Broadway Street, Suite 202 San Francisco, CA 94111 (415) 713-6957 Email: [email protected]   Purchaser: FERRIS HOLDING, INC. Barry Epling, President Email: [email protected]   6.             GOVERNING LAW. This Agreement shall be interpreted and governed in accordance with the laws of the State of Delaware. The parties herein waive trial by jury. In the event that litigation results or arise out of this Agreement or the performance thereof, the parties agree that the prevailing party is entitled to reimbursement for the non-prevailing party of reasonable attorney's fee, costs, expenses, in addition to any other relief to which the prevailing party may be entitled.   7.             CONDITIONS TO CLOSING. The Closing is conditioned upon the fulfillment by the Seller of the satisfaction of the representations and warranties made herein being true and correct in all material respects as of the date of Closing.   8.             SEVERABILITY. In the event that any term, covenant, condition, or other provision contained herein is held to be invalid, void or otherwise unenforceable by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or Agreement shall in no way affect any other term, covenant, condition or provision or Agreement contained herein, which shall remain in full force and effect.   9.             ENTIRE AGREEMENT. This Agreement contains all of the terms agreed upon by the parties with respect to the subject matter hereof. This Agreement has been entered into after full investigation.   10.           INVALIDITY. If any paragraph of this Agreement shall be held or declared to be void, invalid or illegal, for any reason, by any court of competent jurisdiction, such provision shall be ineffective but shall not in any way invalidate or affect any other clause, Paragraph, section or part of this Agreement.   3     11.             GENDER AND NUMBER; SECTION HEADINGS. Words importing a particular gender mean and include the other gender and words importing a singular number mean and include the plural number and vice versa, unless the context clearly indicated to the contrary. The section and other headings contained in this Agreement are for reference purposes only and shall not affect   12.             AMENDMENTS. No amendments or additions to this Agreement shall be binding unless in writing, signed by both parties, except as herein otherwise provided.   13.             ASSIGNMENT. Neither party may assign this Agreement without the express written consent of the other party. Any agreed assignment by the Seller shall be effectuated by all the necessary corporate authorizations and governmental and/or regulatory filings.   14.             CLOSING DOCUMENTS. Seller and Purchaser agree, at any time, to execute, and acknowledge where appropriate, and to deliver any and all documents/instruments, and take such further action, which may necessary to carry out the terms, conditions, purpose and intentions of this Agreement. This   15.             EXCLUSIVE AGREEMENT; AMENDMENT. This Agreement supersedes all prior agreements or understandings among the parties with respect to its subject matter with respect thereto and cannot be changed or terminated orally.   16.             FACSIMILE SIGNATURES. Execution of this Agreement and delivery of signed copies thereof by facsimile signatures from the parties hereto or their agents is acceptable to the parties who waive any objections or defenses based upon lack of an original signature.   17.             PUBLICITY. Except as otherwise required by law, none of the parties hereto shall issue any press release or make any other public statement, in each case relating to, connected with or arising out of this Agreement or the matters contained herein, without obtaining the prior approval of the other to the contents and the manner of presentation and publication thereof.   signed this Agreement by their duly authorized officers the day and year first above written.   PURCHASER   FERRIS HOLDING INC.   By:     Name: Barry Wing   Title: Chief Executive Officer     SELLER   /s/ Richard Chiang     RICHARD CHIANG         4  

Exhibit 24(b)(14): Powers of Attorney POWER OF ATTORNEY Pursuant to Item 601(b)(24) of Regulation SK and Rule 462(b) of the Securities Act of 1933 The undersigned, on behalf of the company set forth below, hereby constitutes and appoints the individuals set forth below and each of them individually as my true and lawful attorneys with full power to them and each of them to sign for me and in my name and in the capacity indicated below any and all amendments to the Registration Statements listed below filed with the Securities and Exchange Commission under the Securities Act of 1933 and the Investment Company Act of 1940 and any documentation, including Form N-8F, necessary to deregister any such registrations or to deregister any of the entities (including any issuing separate accounts) associated with the issuance of any such registrations. COMPANY: Voya Retirement Insurance and Annuity Company INDIVIDUALS WITH POWER OF ATTORNEY: Brian H.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 6-K REPORT OF FOREIGN PRIVATE ISSUER Pursuant to Section 13a-16 or 15d-16 of the Securities Exchange Act of 1934 July 5, 2011 Commission File Number: 001-14534 Precision Drilling Corporation (Exact name of registrant as specified in its charter) 4200, 150 - 6th Avenue S.W. Calgary, Alberta Canada T2P 3Y7 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F. Form 20-F o Form 40-F x Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1). Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders. Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant's "home country"), or under the rules of the home country exchange on which the registrant's securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant's security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR. Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yes o No x If "Yes" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82-N/A SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. PRECISION DRILLING CORPORATION Dated:July 5, 2011 By: Name: Joanne Alexander Title: Corporate Secretary Exhibit Title PRECISION DRILLING CORPORATION 2

Exhibit (e) PLACEMENT AGENT AGREEMENT August 9, 2010 Eaton Vance Distributors, Inc. Two International Place Boston, Massachusetts 02110 Gentlemen: This is to confirm that, in consideration of the agreements hereinafter contained, the undersigned, Global Macro Absolute Return Advantage Portfolio (the “Trust”), an open-end management investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”), organized as a Massachusetts business trust, has agreed that Eaton Vance Distributors, Inc. (“EVD”), shall be the placement agent (the “Placement Agent”) of Interests in the Trust (“Trust Interests”). 1. Services as Placement Agent . 1.1 EVD will act as Placement Agent of the Trust Interests covered by the Trust’s registration statement then in effect under the 1940 Act. In acting as Placement Agent under this Placement Agent Agreement, neither EVD nor its employees or any agents thereof shall make any offer or sale of Trust Interests in a manner which would require the Trust Interests to be registered under the Securities Act of 1933, as amended (the “1933 Act”). 1.2 All activities by EVD and its agents and employees as Placement Agent of Trust Interests shall comply with all applicable laws, rules and regulations, including, without limitation, all rules and regulations adopted pursuant to the 1940 Act by the Securities and Exchange Commission (the “Commission”). 1.3 Nothing herein shall be construed to require the Trust to accept any offer to purchase any Trust Interests, all of which shall be subject to approval by the Board of Trustees. 1.4 The Trust shall furnish from time to time for use in connection with the sale of Trust Interests such information with respect to the Trust and Trust Interests as EVD may reasonably request. The Trust shall also furnish EVD upon request with: (a) unaudited semiannual statements of the Trust’s books and accounts prepared by the Trust, and (b) from time to time such additional information regarding the Trust’s financial or regulatory condition as EVD may reasonably request. 1.5 The Trust represents to EVD that all registration statements filed by the Trust with the Commission under the 1940 Act with respect to Trust Interests have been prepared in conformity with the requirements of such statute and the rules and regulations of the Commission thereunder. As used in this Agreement the term “registration statement” shall mean any registration statement filed with the Commission as modified by any amendments thereto that at any time shall have been filed with the Commission by or on behalf of the Trust. The Trust represents and warrants to EVD that any registration statement will contain all statements required to be stated therein in conformity with both such statute and the rules and regulations of the Commission; that all statements of fact contained in any registration statement will be true and correct in all material respects at the time of filing of such registration statement or amendment thereto; and that no registration statement will include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading to a purchaser of Trust Interests. The Trust may but shall not be obligated to propose from time to time such amendment to any registration statement as in the light of future developments may, in the opinion of the Trust’s counsel, be necessary or advisable. If the Trust shall not propose such amendment and/or supplement within fifteen days after receipt by the Trust of a written request from EVD to do so, EVD may, at its option, terminate this Agreement. The Trust shall not file any amendment to any registration statement without giving EVD reasonable notice thereof in advance; provided, however, that nothing contained in this Agreement shall in any way limit the Trust’s right to file at any time such amendment to any registration statement as the Trust may deem advisable, such right being in all respects absolute and unconditional. 1.6 The Trust agrees to indemnify, defend and hold EVD, its several officers and directors, and any person who controls EVD within the meaning of Section 15 of the 1933 Act or Section 20 of the Securities and Exchange Act of 1934 (the “1934 Act”) (for purposes of this paragraph 1.6, collectively, “Covered Persons”) free and harmless from and against any and all claims, demands, liabilities and expenses (including the cost of investigating or defending such claims, demands or liabilities and any counsel fees incurred in connection therewith) which any Covered Person may incur under the 1933 Act, the 1934 Act, common law or otherwise, arising out of or based on any untrue statement of a material fact contained in any registration statement, private placement memorandum or other offering material (“Offering Material”) or arising out of or based on any omission to state a material fact required to be stated in any Offering Material or necessary to make the statements in any Offering Material not misleading; provided, however, that the Trust’s agreement to indemnify Covered Persons shall not be deemed to cover any claims, demands, liabilities or expenses arising out of any financial and other statements as are furnished in writing to the Trust by EVD in its capacity as Placement Agent for use in the answers to any items of any registration statement or in any statements made in any Offering Material, or arising out of or based on any omission or alleged omission to state a material fact in connection with the giving of such information required to be stated in such answers or necessary to make the answers not misleading; and further provided that the Trust’s agreement to indemnify EVD and the Trust’s representations and warranties hereinbefore set forth in this paragraph 1.6 shall not be deemed to cover any liability to the Trust or its investors to which a Covered Person would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of its duties, or by reason of a Covered Person’s reckless disregard of its obligations and duties under this Agreement. The Trust should be notified of any action brought against a Covered Person, such notification to be given by a writing addressed to the Trust, Two International Place, Boston, Massachusetts 02110, with a copy to the Administrator of the Trust, Eaton Vance Management, at the same address, promptly after the summons or other first legal process shall have been duly and completely served upon such Covered Person. The failure to so notify the Trust of any such action shall not relieve the Trust from any liability except to the extent the Trust shall have been prejudiced by such failure, or from any liability that the Trust may have to the Covered Person against whom such action is brought by reason of any such untrue statement or omission, otherwise than on account of the Trust’s indemnity agreement contained in this paragraph. The Trust will be entitled to assume the defense of any suit brought to enforce any such claim, demand or liability, but in such case such defense shall be conducted by counsel of good standing chosen by the Trust and approved by EVD, which approval shall not be unreasonably withheld. In the event the Trust elects to assume the defense of any such suit and retain counsel of good standing approved by EVD, the defendant or defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them; but in case the Trust does not elect to assume the defense of any such suit or in case EVD reasonably does not approve of counsel chosen by the Trust, the Trust will reimburse the Covered Person named as defendant in such suit, for the fees and expenses of any counsel retained by EVD or it. The Trust’s indemnification agreement contained in this paragraph and the Trust’s representations and warranties in this Agreement shall remain operative and in full force and 2 effect regardless of any investigation made by or on behalf of Covered Persons, and shall survive the delivery of any Trust Interests. This agreement of indemnity will inure exclusively to Covered Persons and their successors. The Trust agrees to notify EVD promptly of the commencement of any litigation or proceedings against the Trust or any of its officers or Trustees in connection with the issue and sale of any Trust Interests. 1.7 EVD agrees to indemnify, defend and hold the Trust, its several officers and trustees, and any person who controls the Trust within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (for purposes of this paragraph 1.7, collectively, “Covered Persons”) free and harmless from and against any and all claims, demands, liabilities and expenses (including the costs of investigating or defending such claims, demands, liabilities and any counsel fees incurred in connection therewith) that Covered Persons may incur under the 1933 Act, the 1934 Act or common law or otherwise, but only to the extent that such liability or expense incurred by a Covered Person resulting from such claims or demands shall arise out of or be based on any untrue statement of a material fact contained in information furnished in writing by EVD in its capacity as Placement Agent to the Trust for use in the answers to any of the items of any registration statement or in any statements in any other Offering Material or shall arise out of or be based on any omission to state a material fact in connection with such information furnished in writing by EVD to the Trust required to be stated in such answers or necessary to make such information not misleading. EVD shall be notified of any action brought against a Covered Person, such notification to be given by a writing addressed to EVD at Two International Place, Boston, Massachusetts 02110, promptly after the summons or other first legal process shall have been duly and completely served upon such Covered Person. EVD shall have the right of first control of the defense of the action with counsel of its own choosing satisfactory to the Trust if such action is based solely on such alleged misstatement or omission on EVD’s part, and in any other event each Covered Person shall have the right to participate in the defense or preparation of the defense of any such action. The failure to so notify EVD of any such action shall not relieve EVD from any liability except to the extent the Trust shall have been prejudiced by such failure, or from any liability that EVD may have to Covered Persons by reason of any such untrue or alleged untrue statement, or omission or alleged omission, otherwise than on account of EVD’s indemnity agreement contained in this paragraph. 1.8 No Trust Interests shall be offered by either EVD or the Trust under any of the provisions of this Agreement and no orders for the purchase or sale of Trust Interests hereunder shall be accepted by the Trust if and so long as the effectiveness of the registration statement or any necessary amendments thereto shall be suspended under any of the provisions of the 1933 Act or the 1940 Act; provided, however, that nothing contained in this paragraph shall in any way restrict or have an application to or bearing on the Trust’s obligation to redeem Trust Interests from any investor in accordance with the provisions of the Trust’s registration statement or Declaration of Trust, as amended from time to time. 1.9 The Trust agrees to advise EVD as soon as reasonably practical by a notice in writing delivered to EVD or its counsel: (a) of any request by the Commission for amendments to the registration statement then in effect or for additional information; (b) in the event of the issuance by the Commission of any stop order suspending the effectiveness of the registration statement then in effect or the initiation by service of process on the Trust of any proceeding for that purpose; 3 (c) of the happening of any event that makes untrue any statement of a material fact made in the registration statement then in effect or that requires the making of a change in such registration statement in order to make the statements therein not misleading; and (d) of all action of the Commission with respect to any amendment to any registration statement that may from time to time be filed with the Commission. For purposes of this paragraph 1.9, informal requests by or acts of the Staff of the Commission shall not be deemed actions of or requests by the Commission. 1.10 EVD agrees on behalf of itself and its employees to treat confidentially and as proprietary information of the Trust all records and other information not otherwise publicly available relative to the Trust and its prior, present or potential investors and not to use such records and information for any purpose other than performance of its responsibilities and duties hereunder, except after prior notification to and approval in writing by the Trust, which approval shall not be unreasonably withheld and may not be withheld where EVD may be exposed to civil or criminal contempt proceedings for failure to comply, when requested to divulge such information by duly constituted authorities, or when so requested by the Trust. 2. Duration and Termination of this Agreement . This Agreement shall become effective upon the date of its execution, and, unless terminated as herein provided, shall remain in full force and effect through and including the second anniversary of the execution of this Agreement and shall continue in full force and effect indefinitely thereafter, but only so long as such continuance after such date is specifically approved at least annually (i) by the Board of Trustees of the Trust or by vote of a majority of the outstanding voting securities of the Trust and (ii) by the vote of a majority of those Trustees of the Trust who are not interested persons of EVD or the Trust cast in person at a meeting called for the purpose of voting on such approval. Either party hereto may, at any time on sixty (60) days’ prior written notice to the other, terminate this agreement without the payment of any penalty, by action of Trustees of the Trust or the Directors of EVD, as the case may be, and the Trust may, at any time upon such written notice to EVD, terminate this Agreement by vote of a majority of the outstanding voting securities of the Trust. This Agreement shall terminate automatically in the event of its assignment. 3. Representations and Warranties . EVD and the Trust each hereby represents and warrants to the other that it has all requisite authority to enter into, execute, deliver and perform its obligations under this Agreement and that, with respect to it, this Agreement is legal, valid and binding, and enforceable in accordance with its terms. 4. Limitation of Liability . EVD expressly acknowledges the provision in the Declaration of Trust of the Trust (Sections 5.2 and 5.6) limiting the personal liability of the Trustees and officers of the Trust, and EVD hereby agrees that it shall have recourse to the Trust for payment of claims or obligations as between the Trust and EVD arising out of this Agreement and shall not seek satisfaction from any Trustee or officer of the Trust. 4 5. Certain Definitions . The terms “assignment” and “interested persons” when used herein shall have the respective meanings specified in the Investment Company Act of 1940 as now in effect or as hereafter amended subject, however, to such exemptions as may be granted by the Securities and Exchange Commission by any rule, regulation or order. The term “vote of a majority of the outstanding voting securities” shall mean the vote, at a meeting of Holders, of the lesser of (a) 67 per centum or more of the Interests in the Trust present or represented by proxy at the meeting if the Holders of more than 50 per centum of the outstanding Interests in the Trust are present or represented by proxy at the meeting, or (b) more than 50 per centum of the outstanding Interests in the Trust. The terms “Holders” and “Interests” when used herein shall have the respective meanings specified in the Declaration of Trust of the Trust. 6. Concerning Applicable Provisions of Law, etc . This Agreement shall be subject to all applicable provisions of law, including the applicable provisions of the 1940 Act and to the extent that any provisions herein contained conflict with any such applicable provisions of law, the latter shall control. The laws of the Commonwealth of Massachusetts shall, except to the extent that any applicable provisions of federal law shall be controlling, govern the construction, validity and effect of this Agreement, without reference to principles of conflicts of law. If the contract set forth herein is acceptable to you, please so indicate by executing the enclosed copy of this Agreement and returning the same to the undersigned, whereupon this Agreement shall constitute a binding contract between the parties hereto effective at the closing of business on the date hereof. Yours very truly, GLOBAL MACRO ABSOLUTE RETURN ADVANTAGE PORTFOLIO By: /s/ Mark S. Venezia Mark S. Venezia President Accepted: EATON VANCE DISTRIBUTORS, INC. By: /s/ Frederick S. Marius Frederick S. Marius Vice President 5

Exhibit 10.25 Execution Version (BANK OF AMERICA LOGO) [w76203w7620301.gif] October 5, 2009 Watson Wyatt Worldwide, Inc. 901 North Glebe Road Arlington, Virginia 22203 Attention:   John J. Haley, President and Chief Executive Officer Roger F. Millay, Vice President and Chief Financial Officer Towers, Perrin, Forster & Crosby, Inc. One Stamford Plaza 263 Tresser Boulevard Stamford, Connecticut 06901 Attention:   Mark Mactas, Chief Executive Officer and Chairman of the Board Bob Hogan, Chief Financial Officer Re:   $500,000,000 Senior Credit Facility — Commitment Letter Ladies and Gentlemen: You have advised each of Bank of America, N.A. (“Bank of America”), Banc of America Securities LLC (“BAS”), PNC Bank, National Association (“PNC”) and PNC Capital Markets, LLC (“PNCCM”; together with Bank of America, BAS and PNC, “we”, “us” or the “Commitment Parties”) that Watson Wyatt Worldwide, Inc. (formerly Watson Wyatt & Company Holdings), a Delaware corporation (“Watson Wyatt”), and Towers, Perrin, Forster & Crosby, Inc., a Pennsylvania corporation (“Towers Perrin” and together with Watson Wyatt, “you”) intend to form a new holding company, Towers Watson & Co. (prior to the effectiveness of the Merger (as hereinafter defined), Jupiter Saturn Holding Company), a Delaware corporation (“Newco”), to effect a merger of Watson Wyatt and Towers Perrin through one or more merger subsidiaries (such transaction, the “Merger”). You have also advised the Commitment Parties that you intend to (a) refinance (i) all indebtedness of Watson Wyatt under that certain Amended and Restated Revolving Credit Agreement dated as of July 11, 2005, among Watson Wyatt & Company, as borrower, the lenders party thereto and SunTrust Bank, as administrative agent, and (ii) all indebtedness of Towers Perrin under that certain Credit Agreement dated as of November 8, 2006, among Towers Perrin, as borrower, the lenders party thereto and PNC, as administrative agent (such refinancings, the “Debt Retirement”), (b) finance the costs and expenses of the Transaction (as hereinafter defined) and certain other costs and expenses, (c) finance payments to retiring shareholders related to the Merger, (d) finance the repurchase of shares of capital stock of Watson Wyatt, Towers Perrin and Newco, (e) finance acquisitions permitted by the definitive loan documentation for the Senior Credit Facility (as hereinafter defined), (f) repay the Senior Subordinated Notes (as hereinafter defined), and (g) finance ongoing working capital and other general corporate purposes of Newco and its subsidiaries after consummation of the Merger from the following sources (and that no financing will be required in connection with the Merger other than the financing described herein): (i) a new senior revolving credit facility to Newco of up to $500,000,000, subject to an increase option of an additional amount up to $150,000,000 (the “Senior Credit Facility”) and (ii) the issuance by Newco of up to $200,000,000 in senior subordinated unsecured notes due within one year of the issuance thereof (the “Senior Subordinated Notes”). The Merger, the entering into and funding of the Senior Credit Facility, the Debt Retirement, the issuance and sale of the Senior Subordinated Notes, and all related transactions are hereinafter collectively referred to as the “Transaction.” 1        1. In connection with the foregoing, (a) Bank of America is pleased to offer its commitment to lend up to $75,000,000 of the Senior Credit Facility and to act as the sole and exclusive administrative agent (in such capacity, the “Administrative Agent”) for the Senior Credit Facility, (b) PNC is pleased to offer its commitment to lend up to $75,000,000 of the Senior Credit Facility, (c) PNCCM is pleased to advise you of its willingness to act as the sole and exclusive syndication agent for the Senior Credit Facility and (d) BAS and PNCCM are pleased to advise you of their willingness to use their best efforts, as joint lead arrangers (each in such capacity, an “Arranger”) for the Senior Credit Facility, to form a syndicate of financial institutions and institutional lenders (including Bank of America and PNC, in each case, at the commitment levels in the foregoing clauses (a) and (b)) (collectively, the “Lenders”) acceptable to you, for the Senior Credit Facility, subject in the case of each of clauses (a), (b), (c) and (d) to the terms and conditions set forth in this letter and in the in the Summary of Terms and Conditions attached as Exhibit A hereto and incorporated herein by this reference (the “Summary of Terms” and, together with this letter agreement, the “Commitment Letter”; all capitalized terms used and not otherwise defined herein shall have the same meanings as specified therefor in the Summary of Terms).      2. To carry out their respective commitments and undertakings hereunder, each of the Commitment Parties reserves the right to engage the services of its other affiliates to furnish the services, and to perform the obligations, contemplated hereby. You further agree that upon your acceptance of the commitments contained herein and continuing through the termination of this Commitment Letter, you will not solicit, initiate or enter into any discussions in respect of, any offering, placement or arrangement of any competing facilities for Newco or any of its proposed subsidiaries (all references herein to subsidiaries of Newco shall be deemed to refer to Watson Wyatt, Towers Perrin and their respective direct and indirect subsidiaries) with respect to the matters addressed in this Commitment Letter, and will refrain from engaging in any additional debt financings for the Transaction (in each case, other than the Senior Subordinated Notes).      3. BAS and PNCCM intend to commence syndication efforts promptly upon your acceptance of this Commitment Letter and the Fee Letters (as hereinafter defined). Each of you agree to actively assist, and to cause Newco following its formation to assist, BAS and PNCCM in achieving a syndication of the Senior Credit Facility that is reasonably satisfactory to them. Such assistance shall include, but will not be limited to, (a) your providing and causing your advisors (subject to attorney-client and other privilege doctrines) to provide (and to cause Newco (following its formation) or its advisors (subject to attorney-client and other privilege doctrines) to provide) us and the Lenders upon request with all information reasonably deemed necessary by us to complete syndication, including, but not limited to, information and evaluations prepared by or on your behalf (or by Newco or on its behalf) in connection with the Transaction (including the Projections (as hereinafter defined), the “Information”); (b) assistance in the preparation of an Information Memorandum and other materials to be used in connection with the syndication of the Senior Credit Facility and the other elements of the Transaction (collectively with the Summary of Terms, the “Information Materials”); (c) your using commercially reasonable efforts to ensure that the syndication efforts benefit materially from your existing lending relationships and existing banking relationships; and (d) otherwise assisting us in our syndication efforts, including by making your officers and advisors (and to cause Newco following its formation to make its officers and advisors) available upon prior written notice and during normal business hours to attend and make presentations regarding the business and prospects of Newco and its subsidiaries, as appropriate, at one or more meetings of prospective Lenders. You hereby agree that the Information Memorandum to be used in connection with the syndication of the Senior Credit Facility shall be completed at least 30 days prior to the Closing Date.      4. The commitments and undertakings of the Commitment Parties hereunder are subject to the satisfaction of each of the following conditions precedent in a manner acceptable to the Commitment Parties: (a) the accuracy and completeness in all material respects of all representations that you and your 2   affiliates make to the Commitment Parties and your compliance in all material respects with the terms of this Commitment Letter and the Fee Letters; (b) prior to and during the syndication of the Senior Credit Facility there shall be no competing offering, placement or arrangement of any debt securities or bank financing by or on behalf of either of you or any of your respective subsidiaries or Newco or any of its subsidiaries (other than the Senior Subordinated Notes); (c) the negotiation, execution and delivery of definitive documentation for the Senior Credit Facility consistent with the Summary of Terms and otherwise satisfactory to the Commitment Parties; (d) no change, occurrence or development shall have occurred or become known to the Commitment Parties since (i) in the case of Watson Wyatt and its subsidiaries, June 30, 2009, (ii) in the case of Towers Perrin and its subsidiaries, June 30, 2009, or (iii) in the case of Newco and its subsidiaries, the date of the formation of Newco, that has had or could reasonably be expected to have a Material Adverse Effect (as defined in the Summary of Terms); and (e) commitments shall have been received (and are in effect) from Lenders (other than Bank of America and PNC) for at least $200,000,000 of the Senior Credit Facility substantially on the terms and conditions referred to herein and in the Summary of Terms. Any waiver of the conditions set forth in “Conditions Precedent to Closing” and “Conditions Precedent to Funding” in the Summary of Terms must be approved by each of Bank of America and PNC.      5. It is understood and agreed that the Arrangers will manage and control all aspects of the syndication in consultation with you, including decisions as to the selection of prospective Lenders and any titles offered to proposed Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders. It is understood that no Lender participating in the Senior Credit Facility will receive compensation from you in order to obtain its commitment, except on the terms contained herein and in the Summary of Terms and the Fee Letters.      6. You represent, warrant and covenant that (a) all financial projections concerning Watson Wyatt, Towers Perrin and their respective subsidiaries that have been or are hereafter made available to us or the Lenders by you or any of your representatives (or on your or their behalf) or by Newco or any of its subsidiaries or representatives (or on their behalf) (the “Projections”) have been or will be prepared in good faith based upon reasonable assumptions and (b) all Information, other than Projections and general market and/or industry information, which has been or is hereafter made available to us or the Lenders by you or any of your representatives (or on your or their behalf) or by Newco or any of its subsidiaries or representatives (or on their behalf) in connection with any aspect of the Transaction, as and when furnished, is and, in the case of Information furnished after the date hereof, will be complete and correct in all material respects and does not and will not contain any untrue statement of statements contained therein not misleading. You agree to furnish us with further and supplemental Information from time to time until the Funding Date so that the representation, warranty and covenant in the immediately preceding sentence are correct on the Funding Date as if the Information were being furnished, and such representation, warranty and covenant were being made, on such date. In issuing this commitment, in arranging and syndicating the Senior Credit Facility and in making the undertakings contained herein, the Commitment Parties are and will be using and relying on the Information without independent verification thereof.      7. You acknowledge that the Commitment Parties on your behalf will make available Information Materials to the proposed syndicate of Lenders by posting the Information Materials on IntraLinks or another similar electronic system. In connection with the syndication of the Senior Credit Facility, unless the parties hereto otherwise agree in writing, you shall be under no obligation to provide Information Materials suitable for distribution to any prospective Lender (each, a “Public Lender”) that has personnel who do not wish to receive material non-public information (within the meaning of the United States federal securities laws, “MNPI”) with respect to Watson Wyatt, Towers Perrin, Newco, their respective affiliates or any other entity, or the respective securities of any of the foregoing. You agree, however, that the definitive credit documentation will contain provisions concerning Information 3   Materials to be provided to Public Lenders and the absence of MNPI therefrom. provide us with a customary letter authorizing the dissemination thereof.      8. By executing this Commitment Letter, you agree to reimburse us from time to time on demand for all reasonable and documented out-of-pocket fees and expenses (including, but not limited to, (a) the reasonable and documented fees, out-of-pocket disbursements and other charges of McGuireWoods LLP, as counsel to BAS and the Administrative Agent, and of special and local counsel to the Lenders retained by BAS or the Administrative Agent, (b) actual, reasonable and documented out-of-pocket due diligence expenses and (c) CUSIP fees for registration with the Standard & Poor’s CUSIP Service Bureau), in each case, incurred by us in connection with the negotiation of the Senior Credit Facility, the syndication thereof and the preparation of the definitive documentation therefor, and with any other aspect of the Transaction. You shall also pay all documented out-of-pocket costs and expenses of each of the Commitment Parties (including, without limitation, the reasonable documented out-of-pocket fees and disbursements of counsel) incurred in connection with the enforcement of any of its rights and remedies hereunder.      9. You agree to indemnify and hold harmless each Commitment Party, each Lender and each of their affiliates and their respective officers, directors, employees, agents, advisors and other representatives (each an “Indemnified Party”) from and against (and will reimburse each Indemnified Party as the same are incurred for) any and all claims, damages, losses, liabilities and documented out-of-pocket fees and expenses (including, without limitation, the reasonable fees, disbursements and other charges of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (a) any aspect of the Transaction or any similar transaction and any of the other transactions contemplated thereby or (b) the Senior Credit Facility, or any use made or proposed to be made with the proceeds thereof, except to the extent such claim, damage, loss, liability or expense is found in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, willful misconduct or breach in bad faith of this Commitment Letter or the Senior Credit Facility. In the case of an investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by you, your equity holders or creditors or an Indemnified Party, whether or not an Indemnified Party is otherwise a party thereto and whether or not any aspect of the Transaction is consummated. You also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their respective equity holders or creditors arising out of, related to or in connection with any aspect of the Transaction, except to the extent of direct, as opposed to special, indirect, consequential or punitive, damages determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, willful misconduct or breach in bad faith of this Commitment Letter or the Senior Credit Facility. Notwithstanding any other provision of this Commitment Letter, no Indemnified Party shall be liable for any damages arising from the use by others of information or other materials obtained through electronic telecommunications or other information transmission systems authorized by you hereunder, other than for direct or actual damages resulting from the gross negligence or willful misconduct of, or breach in bad faith of this Commitment Letter or the Senior Credit Facility by, such Indemnified Party as determined by a final and nonappealable judgment of a court of competent jurisdiction.      10. This Commitment Letter and the fee letter among you and the Commitment Parties of even date herewith (the “Joint Fee Letter”), the fee letter among you, Bank of America and BAS of even date herewith (the “Agent Fee Letter”) and the fee letter among you, PNC and PNCCM of even date 4   herewith (the “Syndication Fee Letter”, and together with the Joint Fee Letter and the Agent Fee Letter, the “Fee Letters”) and the contents hereof and thereof are confidential and, except for disclosure hereof or thereof on a confidential basis to your affiliates, accountants, attorneys and other professional advisors retained by you in connection with the Transaction or as otherwise required by law, may not be disclosed in whole or in part to any person or entity without our prior written consent; provided, however, it is understood and agreed that you may disclose this Commitment Letter but not the Fee Letters (a) on a confidential basis to the board of directors and advisors of each of you in connection with their consideration of the Transaction, and (b) after your acceptance of this Commitment Letter and the Fee Letters, in filings with the Securities and Exchange Commission and other applicable regulatory authorities and stock exchanges and pursuant to the request of any regulatory body or any legal process or as may otherwise be required by applicable law. The Commitment Parties hereby notify you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Act”), each of them is required to obtain, verify and record information that identifies you, which information includes your name and address and other information that will allow Bank of America, BAS, PNC and PNCCM, as applicable, to identify you in accordance with the Act.      11. You acknowledge that the Commitment Parties or their respective affiliates may be providing financing or other services to parties whose interests may conflict with yours. Each of the Commitment Parties agree that they will not furnish confidential information obtained from you to any of their other customers and that they will treat confidential information relating to you, Newco and your and their respective affiliates with the same degree of care as they treat their own confidential information. The Commitment Parties further advise you that they will not make available to you confidential information that they have obtained or may obtain from any other customer. In connection with the services and transactions contemplated hereby, you agree that the Commitment Parties are permitted to access, use and share with any of their bank or non-bank affiliates, agents, advisors (legal or otherwise) or representatives any information concerning you, Newco or any of your or its respective affiliates that is or may come into the possession of the Commitment Parties or any of such affiliates.      12. In connection with all aspects of each transaction contemplated by this Commitment Letter, you acknowledge and agree, and acknowledge your affiliates’ understanding, that: (a) (i) the arranging and other services described herein regarding the Senior Credit Facility are arm’s-length commercial transactions between you and your affiliates, on the one hand, and the Commitment Parties, on the other hand, (ii) you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate, and (iii) you are capable of evaluating, and understand and accept, the terms, risks and conditions of the transaction contemplated hereby; (b) (i) each of the Commitment Parties has been, is, and will be acting solely as a principal and, except as otherwise 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 you, any of your affiliates or any other person or entity and (ii) none of the Commitment Parties has any obligation to you or your affiliates with respect to the transaction contemplated hereby except those obligations expressly set forth herein; and (c) the Commitment Parties and their respective affiliates may be yours and those of your affiliates, and the Commitment Parties have no obligation to disclose any of such interests to you or your affiliates. To the fullest extent permitted by law, you hereby waive and release any claims that you may have against any of the Commitment Parties with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated by this Commitment Letter.      13. The provisions of paragraphs 8 through 12 and 15 of this Commitment Letter shall remain in full force and effect regardless of whether any definitive documentation for the Senior Credit Facility shall be executed and delivered, and notwithstanding the termination of this Commitment Letter or any commitment or undertaking hereunder. 5        14. This Commitment Letter and the Fee Letters may be executed in counterparts which, taken together, shall constitute an original. Delivery of an executed counterpart of this Commitment Letter or the Fee Letters by telecopier, facsimile or other electronic transmission (including .PDF) shall be effective as delivery of a manually executed counterpart thereof.      15. This Commitment Letter and the Fee Letters shall be governed by, and construed in accordance with, the laws of the State of New York. Each of you and us hereby irrevocably waives any and all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Commitment Letter, the Fee Letters, the Transaction and the other transactions contemplated hereby and thereby or the actions of the Commitment Parties in the negotiation, performance or enforcement hereof. The commitments and undertakings of the Commitment Parties may be terminated by us if you fail to perform your obligations under this Commitment Letter or the Fee Letters on a timely basis.      16. This Commitment Letter and the Fee Letters embody the entire agreement and understanding among the Commitment Parties, you, Newco and your and its affiliates with respect to the Senior Credit Facility and supersedes all prior agreements and understandings relating to the specific matters hereof. However, please note that the terms and conditions of the commitments and undertakings of the Commitment Parties hereunder are not limited to those set forth herein or in the Summary of Terms. Those matters that are not covered or made clear herein or in the Summary of Terms or the Fee Letters are subject to mutual agreement of the parties. No party has been authorized by the Commitment Parties to make any oral or written statements that are inconsistent with this Commitment Letter.      17. This Commitment Letter is not assignable by you without our prior written consent and is intended to be solely for the benefit of the parties hereto and the Indemnified Parties.      18. This Commitment Letter and all commitments and undertakings of the Commitment Parties hereunder will expire at 5:00 p.m. (New York City time) on October 5, 2009 unless you execute this Commitment Letter and the Joint Fee Letter and return them to the Arrangers, the Agent Fee Letter to Bank of America, and the Syndication Fee Letter to PNCCM, prior to that time whereupon this Commitment Letter and each of the Fee Letters (each of which may be executed in one or more counterparts) shall become binding agreements. Thereafter, this commitment and undertaking will expire on the earliest of (a) February 26, 2010, unless the Closing Date occurs on or prior thereto, (b) the closing of the Merger without the use of the Senior Credit Facility and (c) the date the Merger Agreement is terminated or declared terminated by either Watson Wyatt or Towers Perrin in any manner, whether or not in accordance with the terms thereof. [THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 6   We are pleased to have the opportunity to work with you in connection with this important financing.           Very truly yours,               BANK OF AMERICA, N.A.               By:   /s/ William S. Rowe   Name: William S. Rowe                   By:   /s/ Andrew M. Hensley   Name: Andrew M. Hensley         Title: Principal               PNC BANK, NATIONAL ASSOCIATION               By:   /s/ Denise D. Killen   Name: Denise D. Killen                 PNC CAPITAL MARKETS, LLC               By:   /s/ Jeff Doherty   Name: Jeff Doherty         Title: Managing Director               ACCEPTED AND AGREED TO     AS OF THE DATE FIRST ABOVE WRITTEN:               WATSON WYATT WORLDWIDE, INC.               By:   /s/ Roger F. Millay   Name: Roger F. Millay         Title: Vice President & Chief Financial Officer               TOWERS, PERRIN, FORSTER & CROSBY, INC.               By:   /s/ Robert Hogan   Name: Robert Hogan       7

- Prepared by Imprima OMB APPROVAL OMB Number: 3235-0518 Expires: June 30, 2011 Estimated average burden hours per response 0.5 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form CB TENDER OFFER/RIGHTS OFFERING NOTIFICATION FORM (AMENDMENT NO. 8) Please place an X in the box(es) to designate the appropriate rule provision(s) relied upon to file this Form: Securities Act Rule 801 (Rights Offering) [] Securities Act Rule 802 (Exchange Offer) [X] Exchange Act Rule 13e-4(h)(8) (Issuer Tender Offer) [] Exchange Act Rule 14d-1(c) (Third Party Tender Offer) [] Exchange Act Rule 14e-2(d) (Subject Company Response) [] Filed or submitted in paper if permitted by Regulation S-T Rule 101(b)(8) [] Note: Regulation S-T Rule 101(b)(8) only permits the filing or submission of a Form CB in paper by a party that is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. KazakhGold Group Limited (Name of Subject Company) Not applicable (Translation of Subject Company’s Name into English (if applicable)) Jersey (Jurisdiction of Subject Company’s Incorporation or Organization) KazakhGold Group Limited (Name of Person(s) Furnishing Form) American Depositary Receipts (Title of Class of Subject Securities) 48667H 600 (CUSIP Number of Class of Securities (if applicable)) Dmitry Ivanov, 88 Wood Street, London, EC2V 7RS Tel.: +44 (0) (Name, Address (including zip code) and Telephone Number (including area code) of Person(s) Authorized to Receive Notices and Communications on Behalf of Subject Company) July 2, 2010 (Date Tender Offer/Rights Offering Commenced) * An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number. Any member of the public may direct to the Commission any comments concerning the accuracy of this burden estimate and any suggestions for reducing this burden. This collection of information has been reviewed by OMB in accordance with the clearance requirements of 44 U.S.C. 3507. SEC2560(12-08) Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number. This Amendment No. 8 amends the Form CB submitted to the Securities and Exchange Commission by KazakhGold Group Limited on July 1, 2010.

Exhibit 10.3 Bankrate, Inc. 2015 EQUITY COMPENSATION PLAN PERFORMANCE UNIT AGREEMENT THIS PERFORMANCE UNIT AGREEMENT (this “Agreement”), dated as of March [ ], 2016 (the “Grant Date”), is entered into by and between Bankrate, Inc., a Delaware corporation (the “Company”), and [NAME], an employee of the Company (the WHEREAS, the Bankrate, Inc. 2015 Equity Compensation Plan (the “Plan”) provides for grants of Restricted Stock Units; and WHEREAS, the Compensation Committee of the Board of Directors of the Company (the “Board”) has decided to make a grant of performance-based Restricted Stock Units to the Participant in order to promote the best interests of the Company and its stockholders on the terms and conditions set forth in this Agreement, conditioned on the Participant’s execution of this Agreement. NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows: 1. Restricted Stock Unit Grant.  The Company hereby grants to the Participant [NUMBER] Restricted Stock Units (the “Performance Units”), subject to increase or decrease in accordance with the terms and conditions of this Agreement and the Plan (which is incorporated herein by reference with the same effect as if set forth herein in full) in addition to such other restrictions, if any, as may be imposed by law.     2. Definitions.  All capitalized terms used herein shall have the same meaning as in the Plan, except as otherwise expressly provided. 3. Vesting and Forfeiture. (a) Performance Factor.  The actual number of Performance Units earned by the Participant, subject to the continued service vesting requirement set forth in Section 3(b) of this Agreement, shall be determined by multiplying the Performance Factor (as defined in Exhibit A hereto) for the period commencing on January 1, 2016 and ending on December 31, 2017 (the “Measurement Period”) by the number of Performance Units granted pursuant to Section 1 of this Agreement, rounded to the nearest whole Performance Unit, with the Performance Factor to be determined upon the later of (i) the date on which the audit of the Company’s financial statements for 2017 is completed and (ii) the date on which the final calculation of the Relative TSR Factor (as defined in Exhibit A hereto) is made by the Committee (such later date, the “Determination Date”), it being expected that the Determination Date shall occur in April 2018 (and in no event shall the determinations contemplated by this sentence be made later than December 31, 2018).  Subject to Section 3(d)(i) of this Agreement, the     number of Performance Units determined pursuant to this Section 3(a) shall be the “Earned Performance Units.”  (b) Service Vesting.  Except as otherwise set forth in this Agreement, (i) 50% of the Earned Performance Units shall vest on the Determination Date and (ii) 50% of the Earned Performance Units shall vest on the third anniversary of the Grant Date (each, a “Vesting Date”), in each case, subject to the Participant not incurring a Termination of Service prior to the applicable Vesting Date (if the number of Earned Performance Units is an odd number, an extra Earned Performance Unit shall vest on the Determination Date). (c) Termination of Service. (i) General.  Except as otherwise provided in Sections 3(c)(ii) and 3(c)(iii) of this Agreement, if the Participant incurs a Termination of Service, any then outstanding and unvested Performance Units shall be automatically and immediately forfeited for no consideration. (ii) Death or Disability; Termination without Cause Prior to a Change in Control.  Notwithstanding Section 3(c)(i) of this Agreement, if the Participant incurs a Termination of Service prior to the third anniversary of the Grant Date that is due to the Participant’s death or Disability, or due to a termination by the Company other than for Cause that occurs prior to a Change in Control, the applicable number of Prorated Earned Performance Units (as defined in Section 3(c)(v) of this Agreement) shall vest on the later of the date of such Termination of Service or the Determination Date (and all other Performance Units shall be forfeited);  provided,  however, that if the Termination of Service occurs subsequent to the Determination Date, the number of Prorated Earned Performance Units that shall so vest shall be reduced by the number of Performance Units, if any, that vested and settled prior to such Termination of Service. (iii) Termination without Cause or Resignation with Good Reason Following a Change in incurs a Termination of Service following a Change in Control due to (A) a termination by the Company without Cause or (B) a termination by the Participant with Good Reason (as defined in Section 3(c)(iv) of this Agreement), all unvested outstanding Earned Performance Units (determined in accordance with Section 3(d) of this Agreement) shall immediately vest as of the date of such Termination of Service. (iv) Definition of Good Reason.  For purposes of this Agreement, “Good Reason” shall mean: (A) if the Participant is party to an employment, consulting or services agreement with the Company that defines “good reason,” the definition of “good reason” set forth therein, and (B) if the Participant is not party to any such agreement, the occurrence of any of the 2   following events:  (1) a reduction in the Participant’s base salary or  incentive compensation opportunity, (2) a material diminution in the Participant’s title, position, or duties, or (3) a relocation of the Participant’s principal place of employment that increases the Participant’s one-way commute by at least 30 miles; provided,  however, that the Participant’s termination shall not be considered to be with Good Reason unless (x) the Participant provides the Company with written notice of the event giving rise to the claim of Good Reason within 30 days following the occurrence of such event, (y) such event is not corrected, in all material respects, by the Company within 30 days following receipt of such notice, and (z) the Participant incurs a Termination of Service not more than 30 days following the expiration of such correction period. (v) Definition of Prorated Earned Performance Units.  For purposes of this Agreement, the “Prorated Earned Performance Units” shall mean a number of Performance Units, rounded to the nearest whole Performance Unit, equal to the product of (A) the number of Earned Performance Units that the Participant would have earned had the Participant not incurred a Termination of Service prior to the third anniversary of the Grant Date (determined in accordance with Section 3(a) of this Agreement) multiplied by (B) a fraction, the numerator of which is the number of days elapsed from the Grant Date through the Date of Termination and the denominator of which is 1,096. (d) Change in Control.  Notwithstanding Section 3(a) or 3(b) of this Agreement: (i) Prior to the Determination Date.  If a Change in Control occurs prior to the Determination Date, (A) the Earned Performance Units shall be determined by the Committee based upon the Company’s actual performance through the Change in Control (with both actual performance and the applicable performance metrics prorated for the portion of the Measurement Period occurring prior to such closing for purposes of determining the Performance Factor, in accordance with the final paragraph of Exhibit A hereto); and (B) the number of Earned Performance Units determined in accordance with clause (A) shall vest in equal installments on (1) the final day of the Measurement Period (or, if later, upon the Change in Control) and (2) the third anniversary of the Grant Date, subject to the Participant not incurring a Termination of Service through such dates.  (ii) Following the Determination Date.  If a Change in Control occurs following the Determination Date but prior to the third anniversary of the Grant Date, all unvested Earned Performance Units (as determined in accordance with Section 3(a) of this Agreement) shall continue to vest in accordance with Section 3(b) of this Agreement. 3   (e) Restatement.  If, during the period following the end of the Measurement Period and prior to the third anniversary of the Grant Date, the Company restates its earnings for any portion of the Measurement Period and it is determined that the Participant would have been eligible to receive a different number of Earned Performance Units based on such restated earnings, the Committee shall adjust the number of Earned Performance Units to reflect the number of Performance Units earned based on the restated earnings, rounded to the nearest whole Performance Unit (in the case of a restatement subsequent to the Determination Date that results in a reduction in the number of Performance Units eligible for vesting, such reduction shall be taken from the Performance Units that would have been eligible to vest on the third anniversary of the Grant Date pursuant to Section 3(b) of this Agreement, but shall not be taken from any previously vested Shares, it being understood that this parenthetical imposes no limitation on application of Section 3(f) of this Agreement). (f) Clawback Policy.  The Participant hereby agrees to be subject to the Company’s Senior Management Team Clawback Policy (the “Clawback Policy”) in all respects, and acknowledges that the Clawback Policy shall apply to (but that its application is not limited to) the Performance Units granted hereunder. 4. Nontransferability.  The Performance Units acquired by the Participant pursuant to this Agreement shall not be sold, transferred, pledged, assigned, or otherwise encumbered or disposed of, except as provided herein and in the Plan. 5. Settlement.  Subject to Section 7 of this Agreement,  the Company shall issue one Share to the Participant for each Performance Unit that becomes vested hereunder within 30 days following the applicable Vesting Date. 6. No Voting Rights; Dividend Equivalents.  Until such time as Performance Units have been settled pursuant to Section 5 of this Agreement and the underlying Shares have been delivered to the Participant, and the Participant has become the holder of such Shares, the Participant shall have no rights as a stockholder, including, without limitation, any right to dividends or other distributions or any right to vote.  Notwithstanding the foregoing,  if the Company declares an ordinary cash dividend the record date of which occurs while the Performance Units are outstanding, the Participant shall receive additional Performance Units in an amount determined by dividing the dollar value of the dividend the Participant would have received on the Performance Units outstanding on the record date of such dividend by the Fair Market Value of a Share on the last trading day before the date of the dividend payment (rounded to the nearest whole Performance Unit).  The additional Performance Units so granted shall be subject to the same restrictions applicable to the underlying Performance Units in respect of which they were granted. 7. Certain Tax Matters.  The Participant expressly acknowledges that the settlement of the Performance Units acquired hereunder may give rise to “wages” subject to withholding and agrees that the minimum withholding required by law shall be satisfied by the Participant surrendering to the Company a portion of the Shares that are issued or transferred to the Participant upon the settlement of the Performance Units (and, at the 4   Company’s election, the Company may withhold and remit to the tax authorities additional Shares so long as the aggregate withholdings do not exceed the amount of tax that would be due based upon the highest statutory tax rate in the applicable jurisdiction).  Any Shares so surrendered by the Participant shall be credited against any such withholding obligation at the Fair Market Value of such Shares on the date of such surrender (and the amount equal to the Fair Market Value of such Shares shall be remitted to the appropriate tax authorities). 8. Governing Law; Captions.  This Agreement shall be governed by and construed and the principles of conflicts of law thereof.  The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. 9. Plan.  The Performance Units are granted pursuant to the Plan, which is incorporated herein by reference, and the Performance Units shall, except as otherwise expressly provided herein, be governed by the terms of the Plan.  In the event of a conflict between the provisions of this Agreement and the terms of the Plan, the terms of the Plan shall control.  The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.  The Participant and the Company each acknowledge that this Agreement (together with the Plan) constitutes the entire agreement and supersedes all other agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. 10. No Employment Rights.  This Agreement shall not create any right of the Participant to continued employment or limit the right of the Company to terminate the Participant’s employment at any time and shall not create any right of the Participant to employment with the Company. 11. Amendment.  This Agreement may be amended only by mutual written agreement of the parties. 12. Assignment.  This Agreement is personal to the Participant and, without the prior written consent of the Company, shall not be assignable by the Participant other than by will or the laws of descent and distribution.  This Agreement shall inure to the benefit of and be enforceable by the Participant’s legal representatives.  This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. 13. Severability.  The invalidity or unenforceability of any provision of this of this Agreement. 14. No Waiver.  The Participant’s or the Company’s failure to insist upon strict compliance with any provision of, or to assert any right under, this Agreement shall not be deemed to be a waiver of such provision or right or of any other provision of or right under this Agreement. 15. Section 409A of the Code.  It is intended that the Performance Units granted pursuant to this Agreement and the provisions of this Agreement be exempt from or comply with Section 409A of the Code, and all provisions of this Agreement shall be construed and 5   interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code. 16. Unfunded Plan.  This Award is unfunded and the Participant shall be considered an unsecured creditor of the Company with respect to the Company’s obligations, if any, to issue Shares pursuant to this Agreement (including, without limitation, as to any Performance Units that vest).  Nothing contained in this Agreement, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind or a fiduciary relationship between the Participant and the Company or any other person. 17. Counterparts.  This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  The parties hereto confirm that any facsimile copy of another party’s executed counterpart of this Agreement (or its signature page thereof) shall be deemed to be an executed original thereof.    6     executed and delivered as of the date first written above.  BANKRATE, INC.   By: _____________________________________       Name:       Title:    PARTICIPANT   ________________________________________ [PARTICIPANT NAME]    [Signature Page to Performance Unit Agreement]

Title: Would you get arrested for taking something off the shelf and returning it? Question:I’m not sure if this is the right subreddit for the post. Let me know and I’ll delete it. The other day I went to BestBuy to return a pair of Bose Headphones, which I no longer had the receipt for. Before they gave me a store credit, they went to check to make sure all the headphones they had in stock were on the shelf. The guy said that many times they have people come in, take something off the shelf, bring it to the return counter, and try to return it, without a receipt for store credit. Is this considered shoplifting and the police would arrest. Or is this some other crime, and BestBuy would need to sue, which I doubt they would, over a $300 item. Edit: I noticed I’m getting down voted. Just to be clear, I wasn’t trying to rob Best Buy. I actually returned something that I bought. The guy at Best Buy told me this stuff happens, and out of curiosity I’m asking about the legal ramifications. Topic: Criminal Law Answer #1: That would absolutely be shoplifting. You would definitely get arrested. They store would also be quite likely to sue you for the cost of the headphones. You would also be likely to be banned from all of their stores for life. Answer #2: What you're describing is return fraud. You could be charged with theft and fraud for returning a stolen item. Depending on your location and the items value/circumstances it can range from misdemeanor/petty theft all the way up to felony charges. Answer #3: I think I'd just say "Go watch the videotape of me walking in the front door and coming here directly." I don't think I'd want to be arrested just because somebody walking around the store has an "in-stock" set of headphones in their shopping cart.Answer #4: Shoplifting. The word you're looking for is shoplifting.

SIDLEY AUSTIN llp NEW YORK, NY 10019 (212) 839 5300 (212) BEIJING BOSTON BRUSSELS CHICAGO DALLAS FRANKFURT GENEVA HONG KONG HOUSTON LONDON LOS ANGELES NEW YORK PALO ALTO SAN FRANCISCO SHANGHAI SINGAPORE SYDNEY TOKYO WASHINGTON, D.C. FOUNDED 1866 Exhibit 5.1 June 24, 2013 Ohio Power Company Ohio Phase-In-Recovery Funding LLC 1 Riverside Plaza Columbus, Ohio 43215 Re: Ohio Phase-In-Recovery Funding LLC Ladies and Gentlemen: We have acted as special counsel to Ohio Power Company (“OPCo”) and Ohio Phase-In-Recovery Funding LLC, a Delaware limited liability company (the “Company”), in connection with the preparation of the Registration Statement filed on Form S-3 (Registration Nos. 333-188745 and 333-188745-01) filed on May 22, 2013 and as amended by Amendment No. 1 filed June 24, 2013 (collectively, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the proposed issuance of up to $278,000,000 of phase-in-recovery bonds (the “Phase-in-Recovery Bonds”) of the Company to be offered in such manner as described in the form of the prospectus (the “Prospectus”) included as part of the Registration Statement.The Phase-in-Recovery Bonds are to be issued under an Indenture (the “Indenture”) between the Company and U.S. Bank National Association, a national banking association, as indenture trustee (the “Indenture Trustee”). This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. We are familiar with the proceedings taken and proposed to be taken by the Company in connection with the proposed authorization, issuance and sale of the Phase-in-Recovery Bonds.We have examined and relied upon originals, or copies of originals, certified or otherwise identified to our satisfaction of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and other instruments, and examined such questions of law and satisfied ourselves to such matters of fact as we deemed relevant or necessary as a basis for this letter.In rendering the opinions expressed in this letter, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships June 24, 2013 Page 2 the conformity with the original documents of any copies thereof submitted to us for examination.As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company or others. Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that: 1.The Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware. 2.The Company has limited liability company power and authority to execute and deliver the Indenture and to authorize and issue the Phase-in-Recovery Bonds and to perform its obligations under the Indenture and the Phase-in-Recovery Bonds. 3.The Phase-in-Recovery Bonds are validly issued and binding obligations of the Company. Our opinion is subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief. This letter is limited to the Limited Liability Company Act of the State of Delaware and the laws of the State of New York (excluding the securities laws of the State of New York).We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws. We hereby consent to (i) the posting of a copy of this letter to an internet website required under Rule 17g-5 under the Exchange Act and maintained by OPCo solely for the purpose of complying with such rule and (ii) the filing of this letter as an exhibit on Form 8-K filed on the date hereof with respect to the above-referenced Registration Statement and to all references to our firm included in or made a part of the Registration Statement. In giving the foregoing consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act. Very truly yours, /s/ Sidley Austin LLP

  LOAN AGREEMENT      THIS LOAN AGREEMENT (this “Agreement”) is made as of August 15, 2007 (the “Closing Date”), by and between GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“Lender”), and SUMMIT HOTEL PROPERTIES, LLC, a South Dakota limited liability company (“Borrower”). AGREEMENT:      In consideration of the mutual covenants and provisions of this Agreement, the parties agree as follows:      1.       Definitions. The following terms shall have the following meanings for all purposes of this Agreement:      “ADA” means the Americans with Disabilities Act of 1990, as such act may be      “Affiliate” means any Person that directly or indirectly controls, is under common control with, or is controlled by any other Person. For purposes of this definition, “controls”, “under common control with” and “controlled by” mean the direction of the management and policies of such Person, whether through ownership of voting securities or otherwise.      “Amended and Restated Note” means the amended and restated note to be executed by Borrower in the form attached to this Agreement as Exhibit B. The Amended and Restated Note shall amend and restate the Note in its entirety and shall be executed by Borrower as of the date of the Final Disbursement.      “Anti-Money Laundering Laws” means all applicable laws, regulations and government guidance on the prevention and detection of money laundering, including 18 U.S.C. § § 1956 and 1957, and the BSA.      “Applicable Regulations” means all applicable statutes, regulations, rules, ordinances, codes, licenses, permits, orders and approvals of each Governmental Authority having jurisdiction over the Premises, including, without limitation, all health, building, fire, safety and other codes, ordinances and requirements, all applicable standards of the National Board of Fire Underwriters and the ADA and all policies or rules of common law, in each case, as amended, and any judicial or administrative interpretation thereof, including any judicial order, consent, decree or judgment applicable to any of the Borrower Parties.      “Architect’s Agreement” has the meaning set forth in the Disbursement Agreement.      “Borrower’s Architect” has the meaning set forth in the Disbursement Agreement.      “Borrower Parties” means, collectively, Borrower and any guarantors of the Loan (including, in each case, any predecessors-in-interest).      “BSA” means the Bank Secrecy Act (31 U.S.C. § § 5311 et. seq.), and its implementing regulations, Title 31 Part 103 of the U.S. Code of Federal Regulations. GECC Contract No. 32775 GECC Property No. 8004-8031 Baton Rouge, Louisiana 1        “Budget” has the meaning set forth in the Disbursement Agreement.      “Business Day” means any day on which Lender is open for business other than a Saturday, Sunday or a legal holiday, ending at 5:00 P.M. Phoenix, Arizona time.      “Change of Control” means a change in control of any of the Borrower direct or indirect transfers of voting stock or partnership, membership or other ownership interests, whether in one or a series of transactions. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any of the Borrower Parties, as applicable, and a Change of Control will occur if any of the following occur: (a) any merger or consolidation by any of the Borrower Parties, as applicable, with or into any other entity; or (b) if any “Person” as defined in Section 3(a)(9) of the Securities and Exchange Act of 1934, as amended (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, who, subsequent to the Closing, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), of securities of any of the Borrower Parties, as applicable, representing 50% or more of the combined voting power of Borrower’s then outstanding securities (other than indirectly as a result of the redemption by any of the Borrower Parties, as applicable, of its securities).      Notwithstanding the foregoing, the following shall not be deemed a Change of Control, so long as The Summit Group, Inc. remains the Company Manager of the Borrower and retains at least 45% of the Sharing Ratios and Kerry W. Boekelheide retains voting control of The Summit Group, Inc.: (i) a transfer of an aggregate of 49% or less of Class A Membership Interests or Class A-1 Membership Interests in Borrower; (ii) a transfer of an aggregate of 49% or less of Class B Membership Interests in Borrower; (iii) a transfer of an aggregate of 49% or less of Class C Membership Interests in Borrower; or (iv) a transfer of an aggregate of 49% or less of ownership interests in The Summit Group, Inc. Also notwithstanding the foregoing, transfers of ownership or beneficial interests in The Summit Group, Inc. to a trust for the benefit of family members for estate or tax planning purposes shall not be a Change of Control so long as Kerry W. Boekelheide retains voting control of The Summit Group, Inc. and exercises control, directly or indirectly, over the operations and business of The Summit Group, Inc. Initially capitalized terms used in this paragraph which are not defined herein shall have the definitions as set forth in the Third Amended and Restated Operating Agreement for Summit Hotel Properties, LLC dated July 25, 2005.      “Closing” means the disbursement of the Loan Amount by Title Company as      “Code” means Title 11 of the United States Code, 11 U.S.C. Sec. 101 et      “Completion Date” has the meaning set forth in the Disbursement Agreement.      “Contract Documents” has the meaning set forth in the Disbursement Agreement.      “Debt Service Coverage Ratio” has the meaning set forth in Section 6.J.      “Default Rate” has the meaning set forth in the Note.      “Development Documents” has the meaning set forth in the Disbursement Agreement.      “Disbursement Agreement” means the Disbursement Agreement dated as of the date hereof executed by Borrower and Lender.      “Disbursements” has the meaning set forth in the Disbursement Agreement. Baton Rouge, Louisiana 2        “Entity” means any entity that is not a natural person.      “Environmental Indemnity Agreement” means the environmental indemnity agreement dated as of the date of this Agreement executed by Borrower for the benefit of the Indemnified Parties and such other parties as are identified in such agreement with respect to the Premises, as the same may be amended from time to time.      “Event of Default” has the meaning set forth in Section 9.      “Fee” means an underwriting, site assessment, valuation, construction, processing and commitment fee equal to 0.65% of the Loan Amount.      “Final Disbursement” has the meaning set forth in the Disbursement Agreement.      “Final Disbursement Date” means the date of the Final Disbursement.      “Franchise Agreement” means the franchise, license or area development agreements with Franchisor for the conduct of business at the Premises as a Permitted Concept, together with all amendments, modifications and supplements thereto.      “Franchisor” means Choice Hotels International, Inc., a Delaware corporation, and its successors,.      “GAAP” means generally accepted accounting principles consistently applied.      “General Contract” has the meaning set forth in the Disbursement Agreement.      “General Contractor” has the meaning set forth in the Disbursement Agreement.      “Governmental Authority” means any governmental authority, agency, department, commission, bureau, board, instrumentality, court or quasi-governmental authority having jurisdiction or supervisory or regulatory authority over the Premises or any of the Borrower Parties.      “Improvements” means the improvements to be constructed upon the Land as contemplated by the Disbursement Agreement.      “Indemnified Parties” means Lender, the trustees under the Mortgage, if applicable, and any person or entity who is or will have been involved in the origination of the Loan, any person or entity who is or will have been involved in the servicing of the Loan, any person or entity in whose name the encumbrance created by the Mortgage is or will have been recorded, persons and entities who may hold or acquire or will have held a full or partial interest in the Loan (including, but not limited to, investors or prospective investors in any Securitization, Participation or Transfer, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefits of third parties), as well as the respective directors, officers, shareholders, partners, members, employees, lenders, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including, but not limited to, any other person or entity who holds or acquires or will have held a participation or other full or partial interest in the Loan or the Premises, whether during the term of the Loan or as a part of or following a foreclosure of the Loan and including, but not limited to, any successors by merger, consolidation or acquisition of all or a substantial portion of Lender’s assets and business). Baton Rouge, Louisiana 3        “Indemnity Agreements” means all indemnity agreements executed for the benefit of any of the Borrower Parties or any prior owner, lessee or occupant of the Premises in connection with Hazardous Materials, including, without limitation, the right to receive payments under such indemnity agreements.      “Initial Equity Contribution” has the meaning set forth in the Disbursement Agreement.      “Initial Loan Amount” means that portion of the Loan to be advanced to Borrower at the Closing.      “Land” means the parcels of real estate legally described on Exhibit A attached hereto, and all rights, privileges and appurtenances associated therewith.      “Lender Entities” means, collectively, Lender (including any predecessor-in-interest to Lender) and any Affiliate of Lender (including any Affiliate of any predecessor-in-interest to Lender).      “Loan” means the loan for the Premises described in Section 2.      “Loan Amount” means $11,300,000.00. Mortgage, the Disbursement Agreement, the Environmental Indemnity Agreement, the UCC-1 Financing Statements, the Authorization Regarding Information form previously delivered on behalf of the Borrower Parties to Lender and all other documents, instruments and agreements executed in connection therewith or contemplated thereby, as the same may be amended from time to time.      “Loan Pool” means: (a) in the context of a Securitization, any pool or group of loans that are a part of such Securitization; (b) in the context of a Transfer, all loans which are sold, transferred or assigned to the same transferee; and (c) in the context of a Participation, all loans as to which participating interests are granted to the same participant.      “Management Agreement” means that certain Management Agreement dated February 11, 2004 entered into between Borrower and Manager, as amended by that First Amendment to Management Agreement dated April 24, 2006, which Management Agreement relates to the Premises in addition to other hotel properties.      “Manager” means The Summit Group, Inc. Premises, including, without limitation, the operation of the Premises as a Permitted Concept, or (b) Borrower’s ability to perform its obligations under the Loan Documents.      “Mortgage” means the deed of trust, deed to secure debt or mortgage dated as of the date of this Agreement executed by Borrower for the benefit of Lender with respect to the Premises, as the same may be amended from time to time.      “Note” means the promissory note dated as of the date of this Agreement executed by Borrower in favor of Lender evidencing the Loan, as such Note shall be amended and restated by the Amended and Restated Note and as the Note may be otherwise amended, restated or substituted from time to time. All references in the Loan Documents to the Note which are applicable to the period of time from and after the execution and delivery of the Amended and Restated Note shall mean the Amended and Restated Note.      “Obligations” has the meaning set forth in the Mortgage. Baton Rouge, Louisiana 4        “OFAC Laws and Regulations” means Executive Order 13224 issued by the President of the United States of America, the Terrorism Sanctions Regulations (Title 31 Part 595 of the U.S. Code of Federal Regulations), the Terrorism List Governments Sanctions Regulations (Title 31 Part 596 of the U.S. Code of Federal Regulations), the Foreign Terrorist Organizations Sanctions Regulations (Title 31 Part 597 of the U.S. Code of Federal Regulations), and the Cuban Assets Control Regulations (Title 31 Part 515 of the U.S. Code of Federal Regulations), and all other present and future federal, state and local laws, ordinances, regulations, policies, lists (including, without limitation, the Specially Designated Nationals and Blocked Persons List) and any other requirements of any Governmental Authority (including, without limitation, the United States Department of the Treasury Office of Foreign Assets Control) addressing, relating to, or attempting to eliminate, terrorist acts and acts of war, each as hereafter supplemented, amended or modified from time to time, and the present and future rules, regulations and guidance documents promulgated under any of the foregoing, or under similar laws, ordinances, regulations, policies or requirements of other states or localities.      “Other Agreements” means, collectively, all agreements and instruments between, among or by (a) any of the Borrower Parties or any Affiliate of any of the Borrower Parties (including any Affiliate of any predecessor-in-interest to any of the Borrower Parties), and, or for the benefit of, (b) any of the Lender Entities, including, without limitation, promissory notes and guaranties; provided, however, the term “Other Agreements” shall not include the agreements and instruments defined as the Loan Documents.      “Participation” means one or more grants by Lender or any of the other Lender Entities to a third party of a participating interest in notes evidencing obligations to repay secured or unsecured loans owned by Lender or any of the other Lender Entities or any or all servicing rights with respect thereto.      “Permitted Concept” means a hotel and Cambria Suites.      “Permitted Exceptions” means those recorded easements, restrictions, liens and encumbrances set forth as exceptions in the title insurance policy issued by Title Company to Lender and approved by Lender in its sole discretion in connection with the closing of the Loan.      “Person” means any individual, corporation, partnership, limited liability company, trust, unincorporated organization, Governmental Authority or any other form of entity.      “Personal Property” has the meaning set forth in the Mortgage.      “Premises” means, collectively, the Land and the Improvements (as such terms are defined in the Mortgage).      “Restoration” has the meaning set forth in the Mortgage.      “Schedule of Values” has the meaning set forth in the Disbursement Agreement.      “Securitization” means one or more sales, dispositions, transfers or assignments by Lender or any of the other Lender Entities to a special purpose corporation, trust or other entity identified by Lender or any of the other Lender Entities of notes evidencing obligations to repay secured or unsecured loans owned by Lender or any of the other Lender Entities (and, to the extent applicable, the subsequent sale, transfer or assignment of such notes to another special purpose corporation, trust or other entity identified by Lender or any of the other Lender Entities), and the issuance of bonds, certificates, notes or other instruments evidencing interests in pools of such loans, whether in connection with a permanent asset securitization or a sale of loans in anticipation of a permanent asset securitization. Each Securitization shall be undertaken in accordance with all requirements which may be imposed by the investors or the rating agencies involved in each such sale, disposition, transfer or assignment or which may be imposed by applicable securities, tax or other laws or regulations. Baton Rouge, Louisiana 5        “Site and Utility Plans” means the site and utility plans prepared by Borrower’s Architect which shall be drawn to the same scale as the ALTA survey described in Section 4.B and depict the Improvements (including all utilities) as they are to be constructed pursuant to the Contract Documents and all other items that would be depicted in the “As Built Survey” of the Premises to be delivered to Lender pursuant to the Disbursement Agreement.      “Title Company” means Lawyers Title Insurance Corporation.      “Transfer” means one or more sales, transfers or assignments by Lender or any of the other Lender Entities to a third party of notes evidencing      “UCC-1 Financing Statements” means such UCC-1 Financing Statements as Lender shall file with respect to the transactions contemplated by this Agreement.      “UCC” has the meaning set forth in the Mortgage.      “U.S. Publicly-Traded Entity” is an Entity whose securities are listed on a national securities exchange or quoted on an automated quotation system in the U.S. or a wholly-owned subsidiary of such an Entity.      2.       Transaction. On the terms and subject to the conditions set forth in the Loan Documents, Lender shall make the Loan. The Loan will be evidenced by the Note and secured by the Mortgage. Borrower shall construct the Improvements on the Land in accordance with the terms and conditions of the Disbursement Agreement and Lender shall make Disbursements pursuant to the terms and conditions of the Disbursement Agreement to fund the costs of such construction. The funding of the Initial Loan Amount shall occur simultaneously with the Closing. Borrower shall repay the outstanding principal amount of the Loan together with interest thereon in the manner and in accordance with the terms and conditions of the Note and the other Loan Documents. At the time of the Final Disbursement, the Note shall be amended and restated by the Amended and Restated Note. The Amended and Restated Note will mature on the first day of the month immediately following the month in which the tenth anniversary of the Final Disbursement Date occurs. The Loan made pursuant to this Agreement, the construction by Borrower of the Improvements pursuant to the Disbursement Agreement and the granting of the security interest in the Premises pursuant to the Mortgage are not severable and shall be considered a single integrated transaction.      3.       Escrow Agent; Closing Costs. Borrower and Lender hereby employ Title Company to act as escrow agent in connection with the transactions described in this Agreement. Borrower and Lender will deliver to Title Company all documents, pay to Title Company all sums and do or cause to be done all other things necessary or required by this Agreement, in the reasonable judgment of Title Company, to enable Title Company to comply herewith and to enable any title insurance policy provided for herein to be issued. Title Company shall not cause the transaction to close unless and until it has received written instructions from Lender and Borrower to do so. Title Company is authorized to pay, from any funds held by it for Lender’s or Borrower’s respective credit all amounts necessary to procure the delivery of such documents and to pay, on behalf of Lender and Borrower, all charges and obligations payable by them, respectively. Borrower will pay all charges payable by it to Title Company. Title Company is authorized, in the event any conflicting demand is made upon it concerning these instructions or the escrow, at its election, to hold any documents or funds deposited hereunder until an action shall be brought in a court of competent jurisdiction to determine the rights of Borrower and Lender or to interplead such documents or funds in an action brought in any such court. Deposit by Title Company of such documents and funds, after deducting therefrom its charges and its expenses and attorneys’ fees incurred in connection with any such court action, shall relieve Title Company of all further liability and responsibility for such documents and funds. Title Company’s receipt of this Agreement and opening of Baton Rouge, Louisiana 6   an escrow pursuant to this Agreement shall be deemed to constitute conclusive evidence of Title Company’s agreement to be bound by the terms and conditions of this Agreement pertaining to Title Company. Disbursement of any funds shall be made by check, certified check or wire transfer, as directed by Borrower and Lender. Title Company shall be under no obligation to disburse any funds represented by check or draft, and no check or draft shall be payment to Title Company in compliance with any of the requirements hereof, until it is advised by the bank in which such check or draft is deposited that such check or draft has been honored. Title Company is authorized to act upon any statement furnished by the holder or payee, or a collection agent for the holder or payee, of any lien on or charge or assessment in connection with the Premises, concerning the amount of such charge or assessment or the amount secured by such lien, without liability or responsibility for the accuracy of such statement. The employment of Title Company as escrow agent shall not affect any rights of subrogation under the terms of any title insurance policy issued pursuant to the provisions thereof. Notwithstanding the foregoing, the terms and conditions of this Agreement shall not limit or affect Title Company’s liability or obligations under the Disbursement Agreement.      4.       Closing Conditions. The obligation of Lender to consummate the transaction contemplated by this Agreement is subject to the fulfillment or waiver of each of the following conditions:      A.       Title Insurance Commitments. Lender shall have received for the Premises a preliminary title report and irrevocable commitment to insure title in the amount of the Loan, by means of a mortgagee’s, ALTA extended coverage policy of title insurance (or its equivalent, in the event such form is not issued in the jurisdiction where the Premises is located) issued by Title Company showing Borrower vested with good and marketable fee title in the real property comprising such Premises, committing to insure Lender’s first priority lien upon and security interest in such real property subject only to Permitted Exceptions, and containing such endorsements as Lender may reasonably require.      B.       Survey. Lender shall have received (1) a current ALTA survey of the Premises or its equivalent, the form and substance of which shall be satisfactory to Lender in its reasonable discretion and (2) the Site and Utility Plans. Lender shall have obtained a flood certificate indicating that the location of the Premises is not within the 100-year flood plain or identified as a special flood hazard area as defined by the Federal Emergency Management Agency, or if the Premises is in such a flood plain or special flood hazard area, Borrower shall have provided Lender with evidence of flood insurance maintained on the Premises in an amount and on terms and conditions reasonably satisfactory to Lender.      C.       Environmental. Lender shall have completed such environmental due diligence of the Premises as it deems necessary or advisable in its sole discretion, and Lender shall have approved the environmental condition of the Premises in its sole discretion.      D.       Compliance With Representations, Warranties and Covenants. All of the representations and warranties set forth in Section 5 shall be true, correct and complete as of the Closing Date, and Borrower shall be in compliance with each of the covenants set forth in Section 6 as of the Closing Date. No event shall have occurred or condition shall exist or information shall have been disclosed by Borrower or discovered by Lender which has had or would be reasonably likely to have a Material Adverse Effect on the Premises, any of the Borrower Parties or Lender’s willingness to consummate the transaction contemplated by this Agreement, as determined by Lender in its sole and absolute discretion.      E.       Proof of Insurance. Borrower shall have delivered to Lender certificates of insurance and copies of insurance policies showing that all insurance required by the Loan Documents and providing coverage and limits satisfactory to Lender are in full force and effect.      F.       Legal Opinions. Borrower shall have delivered to Lender such legal opinions as Lender may reasonably require all in form and substance reasonably satisfactory to Lender and its counsel. Baton Rouge, Louisiana 7        G.       Fee and Closing Costs. Borrower shall have paid the Fee to Lender and shall have paid all costs of the transactions described in this Agreement, including, without limitation, the cost of title insurance premiums and all endorsements required by Lender, survey charges, UCC and litigation search charges, the attorneys’ fees of Borrower, reasonable attorneys’ fees (not to exceed $7,500.00) and expenses of Lender, the cost of the environmental due diligence undertaken pursuant to Section 4.C, Lender’s site inspection costs and fees, stamp taxes, mortgage taxes, transfer fees, escrow, filing and recording fees and UCC filing and recording fees (including preparation, filing and recording fees for UCC continuation statements). Borrower shall have also paid all real and personal property and other applicable taxes and assessments and other charges relating to the Premises which are due and payable on or prior to the Closing Date as well as taxes and assessments due and payable subsequent to the Closing Date but which Title Company requires to be paid at Closing as a condition to the issuance of the title insurance policy described in Section 4.A.      H.       Franchise Agreement. Lender shall have received a certificate (the “Franchisor Certificate”) from Franchisor in form and substance acceptable to Lender which provides that the Premises has been approved by Franchisor. If the Franchise Agreement has been entered into prior to the Closing, the Franchisor Certificate shall also provide that the Franchise Agreement is valid, binding and in full force and effect, with a term (inclusive of existing renewal options) which will expire after the scheduled maturity date of the Note, and no events have occurred which could constitute a default under the Loan Documents, and, to the extent Franchisor has a right of first refusal in the Franchise Agreement that extends to the sale, transfer or conveyance of the Premises, Franchisor waives all such rights of first refusal set forth in the Franchise Agreement as to Lender and its successors and assigns.      I.       Development Documents; Borrower’s Architect Certification. (1) Lender, in its sole and absolute discretion, shall have approved the Contract Documents, the Budget, the Schedule of Values, the Architect’s Agreement, if Borrower is a party to the Architect’s Agreement, the General Contract, the Borrower’s Architect and the General Contractor; Borrower shall have caused the General Contractor to deliver a list to Lender and Title Company, certified by the General Contractor, of (a) all materialmen, laborers, subcontractors, suppliers and any other parties (collectively, the “Vendors”) who may claim statutory or common law liens as a result of furnishing material or labor to the Premises or any portion thereof or interest therein, (b) the work or materials the Vendors will perform or supply, and (c) the cost of such work or materials; and Borrower shall have executed or delivered, as applicable, all Development Documents, including, without limitation, a consent of the General Contractor to the collateral assignment of the General Contract (the “Consent of General Contractor”), all in form and substance acceptable to Lender.      (2)       Borrower shall have delivered to Lender evidence in form and substance reasonably satisfactory to Lender that the plans and specifications for the Improvements are in compliance with all applicable building and zoning codes, ordinances and requirements.      J.       Management Agreement. The Management Agreement shall be in full force and effect. Lender shall have approved the Management Agreement in its sole discretion and Manager and Borrower shall have delivered to Lender such subordination agreements, collateral assignments of management agreement and consents to collateral assignment of management agreement as Lender may require in its sole discretion.      K.       Closing Documents. At or prior to the Closing Date, Lender or the Borrower Parties, as may be appropriate, shall have executed and delivered or shall have caused to be executed and delivered to Lender, or as Lender may otherwise direct, the Loan Documents and such other documents, payments (including, without limitation, the Initial Equity Contribution), instruments and certificates, as Lender may require in form acceptable to Lender. Baton Rouge, Louisiana 8        Upon fulfillment or waiver of all of the above conditions, Lender shall deposit funds necessary to close this transaction with the Title Company and this transaction shall close in accordance with the terms and conditions of this Agreement.      5.       Representations and Warranties of Borrower. The representations and warranties of Borrower contained in this Section are being made by Borrower as of the Closing Date to induce Lender to enter into this Agreement and consummate the transactions contemplated herein and shall survive the Closing.      A.       Financial Information. (1) Borrower has delivered to Lender certain financial statements and other information concerning the Borrower Parties in connection with the transaction described in this Agreement (collectively, the “Financial Information”). The Financial Information is true, correct and complete in all material respects; there have been no amendments to the Financial Information since the date such Financial Information was prepared or delivered to Lender. Borrower understands that Lender is relying upon the Financial Information and Borrower represents that such reliance is reasonable. All annual financial statements included in the Financial Information were prepared in accordance with GAAP and fairly present as of the date of such financial statements the financial condition of each individual or entity to which they pertain. No change has occurred with respect to the financial condition of any of the Borrower Parties or the Premises as reflected in the Financial Information, which has not been disclosed in writing to Lender or has had, or could reasonably be expected to result in, a Material Adverse Effect.      (2)       Borrower has delivered to Lender the Contract Documents. The Contract Documents have been approved by the Borrower Parties and the General Contractor and will enable the Improvements to be constructed for the use of the Premises as a Permitted Concept.      B.       Organization and Authority. Each of the Borrower Parties (other than individuals), as applicable, is duly organized or formed, validly existing and in good standing under the laws of its state of incorporation or formation. Borrower is qualified as a foreign corporation, partnership or limited liability company, as applicable, to do business in each state where the Premises is located, and each of the Borrower Parties is qualified as a foreign corporation, partnership or limited liability company, as applicable, to do business in any other jurisdiction where the failure to be qualified would reasonably be expected to result in a Material Adverse Effect. All necessary action has been taken to authorize the execution, delivery and performance by the Borrower Parties of this Agreement and the other Loan Documents. The person(s) who have executed this Agreement on behalf of Borrower are duly authorized so to do. Borrower is not a “foreign corporation”, “foreign partnership”, “foreign trust”, “foreign estate” or “foreign person” (as those terms are defined by the Internal Revenue Code of 1986, as amended). Borrower’s U.S. Federal Tax Identification number, Organization Identification number and principal place of business are correctly set forth on the signature page of this Agreement. None of the Borrower Parties, and no individual or entity owning directly or indirectly any interest in any of the Borrower Parties, is an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of any of the OFAC Laws and Regulations; provided, however, the representation contained in this sentence shall not apply to any Person to the extent such Person’s interest is in or through a U.S. Publicly-Traded Entity.      C.       Enforceability of Documents. Upon execution by the Borrower Parties, this Agreement and the other Loan Documents shall constitute the legal, valid and binding obligations of the Borrower Parties, respectively, enforceable against the Borrower Parties in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, liquidation, reorganization and other laws affecting the rights of creditors generally and general principles of equity.      D.       Litigation. There are no suits, actions, proceedings or investigations pending, or to the best of its knowledge, threatened against or involving the Borrower Parties or the Premises before any arbitrator or Governmental Authority, except for such suits, actions, proceedings or investigations which, Baton Rouge, Louisiana 9   individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Material Adverse Effect.      E.       Absence of Breaches or Defaults. The Borrower Parties are not, and the authorization, execution, delivery and performance of this Agreement and the other Loan Documents will not result, in any breach or default under any other document, instrument or agreement to which any of the Borrower Parties is a party or by which any of the Borrower Parties, the Premises or any of the property of any of the Borrower Parties is subject or bound, except for such breaches or defaults which, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Material Adverse Effect. The authorization, execution, delivery and performance of this Agreement and the other Loan Documents will not violate any applicable law, statute, regulation, rule, ordinance, code, rule or order. The Premises is not subject to any right of first refusal, right of first offer or option to purchase or lease granted to a third party.      F.       Utilities. All utility services and easements necessary for the construction of the Improvements and the operation thereof as a Permitted Concept are available at the boundaries of the Land, including water supply, storm and sanitary sewer facilities, gas, electric and telephone facilities.      G.       Zoning; Compliance With Laws. The Premises is in compliance with all applicable zoning requirements, and the use of the Premises as a Permitted Concept does not constitute a nonconforming use under applicable zoning requirements. The Borrower Parties and the Premises are in compliance with all Applicable Regulations except for such noncompliance which has not had, and      H.       Area Development; Wetlands. No condemnation or eminent domain proceedings affecting the Premises have been commenced or, to the best of Borrower’s knowledge, are contemplated. Neither the Premises, nor to the best of Borrower’s knowledge, the real property bordering the Premises, are designated by any Governmental Authority as a wetlands.      I.       Licenses and Permits; Access. All required licenses and permits, both governmental and private, to begin construction of the Improvements are in full force and effect, except for such licenses and permits the failure of which to obtain has not had, and would not reasonably be expected to result in, a Material Adverse Effect. Adequate rights of access to public roads and ways are available to the Premises for unrestricted ingress and egress and otherwise to permit utilization of the Premises for their intended purposes, and all such public roads and ways have been completed and dedicated to public use.      J.       Environmental. The representations and warranties of Borrower set forth in Section 2 of the Environmental Indemnity Agreement, together with the corresponding definitions, are incorporated by reference into this Agreement as if stated in full in this Agreement.      K.       Title to Premises; First Priority Lien. Fee title to the real property comprising the Premises is vested in Borrower, free and clear of all liens, encumbrances, charges and security interests of any nature whatsoever, except the Permitted Exceptions. Borrower is owner of all Personal Property, free and clear of all liens, encumbrances, charges and security interests of any nature whatsoever, and no Affiliate of Borrower owns any of the Personal Property. Upon Closing, Lender shall have a first priority lien upon and security interest in the Premises pursuant to the Mortgage and the UCC-1 Financing Statements.      L.       No Mechanics’ Liens. Except as set forth on Exhibit C attached hereto, there are no delinquent accounts payable or mechanics’ liens in favor of any materialman, laborer, or any other person or entity in connection with labor or materials furnished to or performed on any portion of the Premises; and no work has been performed or is in progress nor have materials been supplied to the Premises or Baton Rouge, Louisiana 10   agreements entered into for work to be performed or materials to be supplied to the Premises prior to the date hereof, which will be delinquent on or before the Closing Date.      M.       Franchisor Provisions. The Premises have been approved by Franchisor and Franchisor has either entered into a franchise, license or area development agreement with Borrower with respect to the Premises or has agreed to enter into such agreement with Borrower upon the completion of the construction of the Improvements. If such franchise, license or area development agreement has been entered into prior to the date of this Agreement: (1) Borrower has delivered to Lender a true, correct and complete copy of the Franchise Agreement; (2) the Franchise Agreement is the only agreement in effect with Franchisor with respect to the Premises; (3) the Franchise Agreement is in full force and effect and constitutes the legal, valid and binding obligations of the parties to the Franchise Agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, liquidation, reorganization and other laws affecting the rights of creditors generally and general principles of equity; (4) none of the Borrower Parties has assigned, transferred, mortgaged, hypothecated or otherwise encumbered the Franchise Agreement or any rights thereunder or any interest therein, and none of the Borrower Parties has received any notice that Franchisor has made any assignment, pledge or hypothecation of all or any part of its rights or interest in the Franchise Agreement; (5) no notice of default from Franchisor has been received under the Franchise Agreement which has not been cured and no notice of default to Franchisor has been given under the Franchise Agreement which has not been cured; (6) no event has occurred and no condition exists which, with the giving of notice or the lapse of time or both, would constitute a default under the Franchise Agreement; and (7) the Franchise Agreement has a term (inclusive of existing renewal options) which will expire after the scheduled maturity date of the Amended and Restated Note.      N.       Money Laundering. (1) Borrower has taken all reasonable measures, in accordance with all applicable Anti-Money Laundering Laws, with respect to each holder of a direct or indirect interest in the Borrower Parties, to assure that funds invested by such holders in the Borrower Parties are derived from legal sources; provided, however, none of the foregoing shall apply to any Person to the extent that such Person’s interest is in or through a U.S. Publicly-Traded Entity.      (2)      To Borrower’s knowledge after making due inquiry, neither any of the Borrower Parties nor any holder of a direct or indirect interest in the Borrower Parties (a) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, any violation of any Anti-Money Laundering Laws, or drug trafficking, terrorist-related activities or other money laundering predicated crimes or a violation of the BSA, (b) has been assessed civil penalties under these or related laws, or (c) has had any of its funds seized or forfeited in an action under these or related laws; provided, however, none of the foregoing shall apply to any Person to the extent that such Person’s interest is in or through a U.S. Publicly-Traded Entity.      (3)       Borrower has taken reasonable steps, consistent with industry practice for comparable organizations and in any event as required by law, to ensure that the Borrower Parties are and shall be in compliance with all (a) Anti-Money Laundering Laws and (b) OFAC Laws and Regulations.      O.       Management Agreement. Borrower has delivered to Lender a true, correct and complete copy of the Management Agreement. The Management Agreement is the only agreement in effect with Manager with respect to the Premises. The Management Agreement is in full force and effect and constitutes the legal, valid and binding obligations of the parties to the Management Agreement, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, liquidation, reorganization and other laws affecting the rights of creditors generally and general principles of equity. As it relates to the Premises, Borrower has not assigned, transferred, mortgaged, hypothecated or otherwise encumbered the Management Agreement or any rights thereunder or any interest therein, and Borrower has not received any notice that Manager has made any assignment, pledge or hypothecation of all or any part of its rights or interest in the Baton Rouge, Louisiana 11   Management Agreement. No notice of default from Manager has been received under the Management Agreement that has not been cured and no notice of default to Manager has been given under the Management Agreement which has not been cured. No event has occurred and no condition exists which, with the giving of notice or the lapse of time or both, would constitute a default under the Management Agreement.      6.       Covenants. Borrower covenants to Lender from and after the Closing Date and until all of the Obligations are satisfied in full, as follows:      A.       Payment of the Note. Borrower shall punctually pay, or cause to be paid, the principal, interest and all other sums to become due in respect of the Note and the other Loan Documents in accordance with the Note and the other Loan Documents. Borrower shall authorize Lender to establish arrangements whereby all scheduled payments made in respect of the Obligations are transferred by Automated Clearing House Debit initiated by Lender directly from an account at a U.S. bank in the name of Borrower to such account as Lender may designate or as Lender may otherwise designate.      B.       Title. Borrower shall maintain good and marketable fee simple title to the real property comprising the Premises, and title to the Personal Property and the remainder of the Premises, free and clear of all liens, encumbrances, charges and other exceptions to title, except the Permitted Exceptions or except as permitted by the Loan Documents. Lender shall have valid first liens upon and security interests in the Premises, including the Personal Property, pursuant to the Mortgage and the UCC-1 Financing Statements.      C.       Organization and Status of Borrower; Preservation of Existence. Each of the Borrower Parties (other than individuals), as applicable, shall be incorporation or formation. Borrower shall be qualified as a foreign corporation, partnership or limited liability company to do business in each state where the Premises is located, and each of the Borrower Parties shall be qualified as a foreign corporation, partnership or limited liability company in any other jurisdiction where the failure to be qualified would reasonably be expected to result in a Material Adverse Effect. Borrower shall preserve its current form of organization and shall not change its legal name, its state of formation, nor, in one transaction or a series of related transactions, merge with or into, or consolidate with, any other entity without providing, in each case, Lender with 30 days’ prior written notice and obtaining Lender’s prior written consent (to the extent such consent is required under Section 7 of this Agreement). In addition, Borrower shall require, and shall take reasonable measures to comply with the requirement, that no individual or entity owning directly or indirectly any interest in any of the Borrower Parties is an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of any of the OFAC Laws and Regulations; provided, however, the covenant contained in this sentence shall not apply to any Person to the extent that such Person’s      D.       Licenses and Permits. From and after the Completion Date, all required licenses and permits, both governmental and private, to use and operate the Premises as a Permitted Concept shall be maintained in full force and effect.      E.       Compliance With Laws Generally. The use and occupation of the Premises, and the condition thereof, including, without limitation, any Restoration, shall comply with all Applicable Regulations now or hereafter in effect, including, without limitation, the OFAC Laws and Regulations and Anti-Money Laundering Laws. In addition, the Borrower Parties shall comply with all Applicable Regulations now or hereafter in effect. Without limiting the generality of the other provisions of this Section, Borrower shall comply with the ADA, and all regulations promulgated thereunder, as it affects the Premises. Baton Rouge, Louisiana 12        F.       Compliance With Environmental Provisions. The covenants, obligations and agreements of Borrower set forth in Sections 3 through 7 of the Environmental Indemnity Agreement, together with the corresponding definitions, are incorporated by reference into this Agreement as if stated in full in this Agreement.      G.       Financial Statements. From and after the Completion Date, within 45 days after the end of each fiscal quarter and within 120 days after the end of each fiscal year of Borrower, Borrower shall deliver to Lender (1) complete financial statements of the Borrower Parties including a balance sheet, profit and loss statement, statement of cash flows and all other related schedules for the fiscal period then ended; (2) income statements for the business at the Premises; (3) standard hotel data of rooms sold and rooms available, as well as gross revenue breakdown of room revenue from other revenue, so that occupancy ADR and RevPar Statistics can be calculated; and (4) such other financial information as Lender may reasonably request in order to establish compliance with the financial covenants in the Loan Documents, including, without limitation, Section 6.J of this Agreement. All such annual financial statements shall be prepared in accordance with GAAP from period to period, and shall be certified to be accurate and complete by Borrower (or the Treasurer or other appropriate officer of Borrower). In the event the property and business at the Premises is ordinarily consolidated with other business for financial statement purposes, such financial statements shall be prepared on a consolidated basis showing separately the sales, profits and losses, assets and liabilities pertaining to the Premises with the basis for allocation of overhead of other charges being clearly set forth. The financial statements delivered to Lender need not be audited, but Borrower shall deliver to Lender copies of any audited financial statements of Borrower which may be prepared, as soon as they are available. Borrower shall also cause to be delivered to Lender copies of any financial statements required to be delivered to Borrower by any tenants of the Premises.      H.       Lost Note. Borrower shall, if the Note is mutilated, destroyed, lost or stolen (a “Lost Note”), promptly deliver to Lender, upon receipt from Lender of an affidavit and indemnity in a form reasonably acceptable to Lender and Borrower stipulating that the Note has been mutilated, destroyed, lost or stolen, in substitution therefor, a new promissory note containing the same terms and conditions as the Lost Note with a notation thereon of the unpaid principal and accrued and unpaid interest. Borrower shall provide fifteen (15) days’ prior notice to Lender before making any payments to third parties in connection with the Lost Note.      I.       Inspections. Borrower shall, during normal business hours (or at any time in the event of an emergency) and at reasonable intervals, (1) provide Lender and Lender’s officers, employees, agents, advisors, attorneys, accountants, architects, and engineers with access to the Premises, all drawings, plans, and specifications for the Premises in possession of any of the Borrower Parties, all engineering reports relating to the Premises in the possession of any of the Borrower Parties, the files, correspondence and documents relating to the Premises, and the financial books and records, including lists of delinquencies, relating to the ownership, operation, and maintenance of the Premises (including, without limitation, any of the foregoing information stored in any computer files), (2) allow such persons to make such inspections, tests, copies, and verifications as Lender considers necessary, and (3) if Borrower is in breach of the Debt Service Coverage Ratio requirement set forth in the following subsection J, pay expenses reasonably incurred by Lender from time to time in conducting such inspections, tests, copies and verifications upon demand (such amounts to bear interest at the Default Rate if not paid upon demand until paid).      J.       Debt Service Coverage Ratio. From and after the Completion Date, Borrower shall maintain a Debt Service Coverage Ratio of at least 1.25:1 before distribution payouts and 1.0:1 after distribution payouts, as determined as of Borrower’s fiscal year end. For purposes of this Section, the term “Debt Service Coverage Ratio” shall mean with respect to the twelve month period of time immediately preceding the date of determination, the ratio calculated for such period of time, each as determined in accordance with GAAP, of (1) earnings before Interest Expense, income taxes, Baton Rouge, Louisiana 13   Depreciation and Amortization, plus or minus other non-recurring renovation/remodel expenses funded with the proceeds of a loan or other non-operating sources to (2) principal and interest payments on the aggregate first mortgage term debt.      For purposes of this Section, the following terms shall be defined as set forth below:      “Depreciation and Amortization” shall mean the depreciation and amortization accruing during any period of determination with respect to Borrower and the other Borrower Parties, collectively, as determined in accordance with GAAP.      “Interest Expense” shall mean for any period of determination, the sum of all interest accrued or which should be accrued in respect of all Debt of accordance with GAAP.      K.       Affiliate Transactions. Unless otherwise approved by Lender, all transactions between Borrower and any of its Affiliates shall be on terms substantially as advantageous to Borrower as those which could be obtained by Borrower in a comparable arm’s length transaction with a non-Affiliate of Borrower.      L.       Compliance Certificates. Within 90 days after the end of each fiscal year of Borrower, Borrower shall deliver a compliance certificate to Lender in a form to be provided by Lender in order to establish that Borrower is in compliance in all material respects with all of its obligations, duties and covenants under the Loan Documents.      M.       Franchise Agreement. From and after the Completion Date, the Franchise Agreement shall be maintained in full force and effect. No event shall occur nor shall any condition exist which, with the giving of notice or the lapse of time or both, would constitute a breach or default under the Franchise Agreement. Borrower shall give prompt notice to Lender of any claim of default by or to the franchisee under the Franchise Agreement and shall provide Lender with a copy of any default notice given or received by the franchisee under the Franchise Agreement and any information submitted or referenced in support of such claim of default. Borrower shall also give prompt notice to Lender of any extensions or renewals of the Franchise Agreement and the expiration or termination of the Franchise Agreement.      N.       Use of Disbursements. Borrower will use the Disbursements solely to construct the Improvements, and it will not require and will not avail itself of any other extension of credit for such purpose without Lender’s prior written consent.      O.       Contract Documents. Following approval by Lender, the Contract Documents, including, without limitation, the location of the Improvements depicted on the Site and Utility Plans, will not be changed or altered in any respect without Lender’s prior written consent except as allowed in the Disbursement Agreement.      P.       OFAC Laws and Regulations. Borrower shall immediately notify Lender in writing if any individual or entity owning directly or indirectly any interest in any of the Borrower Parties or any director, officer, member, manager or partner of any of such holders is an individual or entity whose Regulations, or is under investigation by any governmental entity for, or has been charged with, or convicted of, drug trafficking, terrorist-related activities or any violation of Anti-Money Laundering Laws, has been assessed civil penalties under these or related laws, or has had funds seized or forfeited in an action under these or related laws; provided, however, the covenant contained in this sentence shall not apply to any Person to the extent that such Person’s interest is in or through a U.S. Publicly-Traded Entity. Baton Rouge, Louisiana 14        Q.       Management Agreement. The Management Agreement shall be maintained in full force and effect. No event shall occur nor shall any condition exist which, with the giving of notice or the lapse of time or both, would constitute a breach or default under the Management Agreement. Borrower shall give prompt notice to Lender of any claim of default by or to the Manager under the Management Agreement and shall provide Lender with a copy of any default notice given or received by the Manager under the Management Agreement and any information submitted or referenced in support of such claim of default. Borrower shall also give prompt notice to Lender of the expiration or termination of the Management Agreement.      7.       Prohibition on Change of Control and Pledge. A. Without limiting the terms and conditions of Section 3.09 of the Mortgage, Borrower agrees that, from and after the Closing Date and until all of the Obligations are satisfied in full, without the prior written consent of Lender: (1) no Change of Control shall occur; and (2) no interest in any of the Borrower Parties shall be pledged, encumbered, hypothecated or assigned as collateral for any obligation of any of the Borrower Parties (each, a “Pledge”). In addition, no interest in any of the Borrower Parties, or in any individual or person owning directly or indirectly any interest in any of the Borrower Parties, shall be transferred, assigned or conveyed to any individual or person whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or who is in violation of any of the OFAC Laws and Regulations, and any such transfer, assignment or conveyance shall not be effective until the transferee has provided written certification to Borrower and Lender that (x) the transferee or any person who owns directly or indirectly any interest in transferee, is not an under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations, and (y) the transferee has taken reasonable measures to assure than any individual or entity who owns directly or indirectly any interest in transferee, is not an individual or entity whose property or interests are subject to being blocked under any of the OFAC Laws and Regulations or is otherwise in violation of the OFAC Laws and Regulations; provided, however, the covenant contained in this sentence shall not apply to any Person to the extent that such Person’s interest is in or through a U.S.      B.       Lender’s consent to a Change of Control or Pledge shall be subject to the satisfaction of such conditions as Lender shall determine in its sole discretion, including, without limitation, (1) the execution and delivery of such modifications to the terms of the Loan Documents as Lender shall request, (2) the proposed Change of Control or Pledge having been approved by each of the rating agencies which have issued ratings in connection with any Securitization of the Loan as well as any other rating agency selected by Lender, and (3) the proposed transferee having agreed to comply with all of the terms and conditions of the Loan Documents (including any modifications requested by Lender pursuant to clause (1) above). In addition, any such consent shall be conditioned upon payment by Borrower to Lender of (a) a fee equal to one percent (1%) of the then outstanding principal balance of the Note and (b) all out-of-pocket costs and expenses incurred by Lender in connection with such consent, including, without limitation, reasonable attorneys’ fees. Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Obligations immediately due and payable upon a Change of Control or Pledge in violation of this Section. The provisions of this Section shall apply to every Change of Control or Pledge regardless of whether voluntary or not, or whether or not Lender has consented to any previous Change of Control or Pledge.      8.       Transaction Characterization. A. It is the intent of the parties hereto that this Agreement and the other Loan Documents are a contract to extend a financial accommodation (as such term is used in the Code) for the benefit of Borrower and that the Loan Documents evidence one unitary, unseverable transaction pertaining to the Premises.      B.       It is the intent of the parties hereto that the business relationship created by the Loan Documents is solely that of creditor and debtor and has been entered into by both parties in reliance upon the economic and legal bargains contained in the Loan Documents. None of the agreements contained Baton Rouge, Louisiana 15   in the Loan Documents is intended, nor shall the same be deemed or construed, to create a partnership (either de jure or de facto) between Borrower and Lender, to make them joint venturers, to make Borrower an agent, legal representative, partner, subsidiary or employee of Lender, nor to make Lender in any way responsible for the debts, obligations or losses of Borrower.      9.       Default and Remedies. A. Each of the following shall be deemed an event of default by Borrower (each, an “Event of Default”):      (1)       If any representation or warranty of any of the Borrower Parties set forth in any of the Loan Documents is false in any material respect when made, or if any of the Borrower Parties renders any statement or account which is false in any material respect.      (2)       If any principal, interest or other monetary sum due under the Note, the Mortgage or any other Loan Document is not paid within five days after the date when due; provided, however, notwithstanding the occurrence of such an Event of Default, Lender shall not be entitled to exercise its rights and remedies set forth below unless and until Lender shall have given Borrower written notice thereof and a period of five days from the delivery of such notice shall have elapsed without such Event of Default being cured.      (3)       If Borrower fails to observe or perform any of the other covenants, conditions, or obligations of this Agreement; provided, however, if any such failure does not involve the payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of Lender in immediate jeopardy, and is within the reasonable power of Borrower to promptly cure after receipt of notice thereof, all as determined by Lender in its reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Lender shall have given Borrower notice thereof and a period of 30 days shall have elapsed, during which period Borrower may correct or cure such failure, upon failure of which an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30-day period, as determined by Lender in its reasonable discretion, and Borrower is diligently pursuing a cure of such failure, then Borrower shall have a reasonable period to cure such failure beyond such 30-day period, which shall not exceed 90 days after receiving notice of the failure from Lender. If Borrower shall fail to correct or cure such failure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required.      (4)       If any of the Borrower Parties becomes insolvent within the meaning of the Code, files or notifies Lender that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an “Action”), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due. Notwithstanding the foregoing, the filing of an involuntary bankruptcy proceeding against any of the Borrower Parties shall not be an Event of Default herein provided that such case or proceeding is dismissed with prejudice within 60 days of the filing thereof.      (5)       If there is an “Event of Default” or a breach or default, after the passage of all applicable notice and cure or grace periods, under any of the Other Agreements, or any other Loan Document.      (6)       If a final, nonappealable judgment is rendered by a court against any of the Borrower Parties which (a) has a Material Adverse Effect on the operation of the Premises as a Permitted Concept, or (b) is in an amount greater than $100,000.00 and not covered by insurance, and, in either case, is not discharged or provision made for such discharge within 60 days from the date of entry of such judgment. Baton Rouge, Louisiana 16        (7)       If there is a breach or default, after the passage of all applicable notice and cure or grace periods, under the Franchise Agreement, or if the Franchise Agreement terminates or expires prior to the payment in full of the Note in accordance with its terms and a substitute agreement for the terminated or expired agreement is not entered into with Franchisor prior to such expiration or termination, which substitute agreement shall be in form and substance reasonably satisfactory to Lender and shall expire after the scheduled maturity date of the Note.      (8)       If there is a breach or default, after the passage of all applicable notice and cure or grace periods, under the Management Agreement, or if the Management Agreement terminates or expires prior to the payment in full of the Note in accordance with its terms and a substitute agreement for the terminated or expired agreement is not entered into with Manager prior to such expiration or termination, which substitute agreement shall be in form and      B.       Upon the occurrence and during the continuance of an Event of Default, subject to the limitations set forth in subsection A, Lender may declare all or any part of the obligations of Borrower under the Note, this Agreement and any other Loan Document to be due and payable, and the same shall thereupon become due and payable without any presentment, demand, protest or notice of any kind except as otherwise expressly provided herein, and Borrower hereby waives notice of intent to accelerate the obligations secured by the Mortgage and notice of acceleration. Thereafter, Lender may exercise, at its option, concurrently, successively or in any combination, all remedies available at law or in equity, including without limitation any one or more of the remedies available under the Note, the Mortgage or any other Loan Document. Neither the acceptance of this Agreement nor its enforcement shall prejudice or in any manner affect Lender’s right to realize upon or enforce any other security now or hereafter held by Lender, it being agreed that Lender shall be entitled to enforce this Agreement and any other security now or hereafter held by Lender in such order and manner as it may in its absolute discretion determine. No remedy herein conferred upon or reserved to Lender is intended to be exclusive of any other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by any of the Loan Documents to Lender, or to which Lender may be otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Lender.      10.       Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ fees, court costs and other costs of defense) (collectively, “Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ fees, environmental consultants’ fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by Borrower; (2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (3) any activity Baton Rouge, Louisiana 17   by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; (4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; (6) the filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Premises by Borrower, including but not limited to costs to investigate and assess such injury, destruction or loss; (9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; (11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Par ty, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.      B.       Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against Lender, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or Remediation on, at or affecting the Premises. Baton Rouge, Louisiana 18        11.       Miscellaneous Provisions.      A.       Notices. All notices, consents, approvals or other instruments required or permitted to be given by either party pursuant to this Agreement or any of the other Loan Documents shall be in writing and given by (i) hand delivery, (ii) facsimile, (iii) express overnight delivery service or (iv) certified or registered mail, return receipt requested, and shall be deemed to have been delivered upon (a) receipt, if hand delivered, (b) transmission, if delivered by facsimile, (c) the next Business Day, if delivered by express overnight delivery service, or (d) the third Business Day following the day of deposit of such notice with the United States Postal Service, if sent by certified or registered mail, return receipt requested. Notices shall be provided to the parties and addresses (or facsimile numbers, as applicable) specified below. If to Borrower: Summit Hotel Properties, LLC, 2701 S. Minnesota Avenue, Suite 6, Sioux Falls, South Dakota 57105, Attention: Hulyn Farr, Telephone: (605) 361-9566, Telecopy: (605) 362-9388; and if to Lender: General Electric Capital Corporation, 8377 East Hartford Drive, Suite 200 Scottsdale, Arizona 85255, Attention: Collateral Management, Telephone: 480-585-4500, Telecopy: 480-585-2225.      B.       Real Estate Commission. Lender and Borrower represent and warrant to each other that they have dealt with no real estate or mortgage broker, agent, finder or other intermediary in connection with the transactions contemplated by this Agreement or the other Loan Documents. Lender and Borrower shall indemnify and hold each other harmless from and against any costs, claims or expenses, including attorneys’ fees, arising out of the breach of their respective representations and warranties contained within this Section.      C.       Waiver and Amendment; Document Review. (1) No provisions of this Agreement or the other Loan Documents shall be deemed waived or amended except by a written instrument unambiguously setting forth the matter waived or amended and signed by the party against which enforcement of such waiver or amendment is sought. Waiver of any matter shall not be deemed a waiver of the same or any other matter on any future occasion.      (2)       In the event Borrower makes any request upon Lender requiring Lender or Lender’s attorneys to review or prepare (or cause to be reviewed or prepared) any documents, plans, specifications or other submissions in connection with or arising out of this Agreement or any of the other Loan Documents, then Borrower shall (a) reimburse Lender promptly upon Lender’s demand for all out-of-pocket costs and expenses incurred by Lender in connection with such review or preparation, including, without limitation, reasonable attorneys’ fees, and (b) pay Lender a reasonable processing and review fee.      D.       Captions. Captions are used throughout this Agreement and the other Loan Documents for convenience of reference only and shall not be considered in any manner in the construction or interpretation hereof.      E.       Lender’s Liability. Notwithstanding anything to the contrary provided in this Agreement or the other Loan Documents, it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Agreement and the other Loan Documents by Lender, that (1) there shall be absolutely no personal liability on the part of any shareholder, director, officer or employee of Lender, with respect to any of the terms, covenants and conditions of this Agreement or the other Loan Documents, (2) Borrower waives all claims, demands and causes of action against Lender’s officers, directors, employees and agents in the event of any breach by Lender of any of the terms, covenants and conditions of this Agreement or the other Loan Documents to be performed by Lender and (3) Borrower shall look solely to the assets of Lender for the satisfaction of each and every remedy of Borrower in the event of any breach by Lender of any of the terms, covenants and conditions of this Agreement or the other Loan Documents to be performed by Lender, such exculpation of liability to be absolute and without any exception whatsoever. Baton Rouge, Louisiana 19        F.       Severability. The provisions of this Agreement and the other Loan Documents shall be deemed severable. If any part of this Agreement or the other Loan Documents shall be held invalid, illegal or unenforceable, the remainder shall remain in full force and effect, and such invalid, illegal or unenforceable provision shall be reformed by such court so as to give maximum legal effect to the intention of the parties as expressed therein.      G.       Construction Generally. This Agreement and the other Loan Documents have been entered into by parties who are experienced in sophisticated and complex matters similar to the transaction contemplated by this Agreement and the other Loan Documents and are entered into by both parties in reliance upon the economic and legal bargains contained therein and shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party which prepared the instrument, the relative bargaining powers of the parties or the domicile of any party. Borrower and Lender were each represented by legal counsel competent in advising them of their obligations and liabilities hereunder.      H.       Further Assurances. Borrower will, at its sole cost and expense, do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered all such further acts, documents, conveyances, notes, mortgages, deeds of trust, assignments, security agreements, financing statements and assurances as Lender shall from time to time reasonably require or deem advisable to carry into effect the purposes of this Agreement and the other Loan Documents, to perfect any lien or security interest granted in any of the Loan Documents and for the better assuring and confirming of all of Lender’s rights, powers and remedies under the Loan Documents.      I.       Attorneys’ Fees. In the event of any judicial or other adversarial proceeding between the parties concerning this Agreement or the other Loan Documents, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs in addition to any other relief to which it may be entitled.      J.       Entire Agreement. This Agreement and the other Loan Documents, together with any other certificates, instruments or agreements to be delivered in connection therewith, constitute the entire agreement between the parties with respect to the subject matter hereof, and there are no other representations, warranties or agreements, written or oral, between Borrower and Lender with respect to the subject matter of this Agreement and the other Loan Documents. Notwithstanding anything in this Agreement and the other Loan Documents to the contrary, with respect to the Premises, upon the execution and delivery of this Agreement by Borrower and Lender, any bid proposals or loan commitments with respect to the transactions contemplated by this Agreement shall be deemed null and void and of no further force and effect and the terms and conditions of this Agreement shall control notwithstanding that such terms and conditions may be inconsistent with or vary from those set forth in such bid proposals or loan commitments.      K.       Forum Selection; Jurisdiction; Venue; Choice of Law. Borrower acknowledges that this Agreement and the other Loan Documents were substantially negotiated in the State of Arizona, this Agreement and the other Loan Documents were executed by Lender in the State of Arizona and delivered by Borrower in the State of Arizona, all payments under the Note will be delivered in the State of Arizona and there are substantial contacts between the parties and the transactions contemplated herein and the State of Arizona. For purposes of any action or proceeding arising out of this Agreement or any of the other Loan Documents, the parties hereto hereby expressly submit to the jurisdiction of all federal and state courts located in the State of Arizona and Borrower consents that it may be served with any process or paper by registered mail or by personal service within or without the State of Arizona in accordance with applicable law. Furthermore, Borrower waives and agrees not to assert in any such action, suit or proceeding that it is not personally subject to the jurisdiction of such courts, that the action, suit or proceeding is brought in an inconvenient forum or that venue of the action, suit or proceeding is improper. It is the intent of the parties hereto that all provisions of this Agreement and the Note shall be Baton Rouge, Louisiana 20   governed by and construed under the laws of the State of Arizona, without giving effect to its principles of conflicts of law. To the extent that a court of competent jurisdiction finds Arizona law inapplicable with respect to any provisions of this Agreement or the Note, then, as to those provisions only, the laws of the state where the Premises is located shall be deemed to apply. Nothing in this Section shall limit or restrict the right of Lender to commence any proceeding in the federal or state courts located in the state in which the Premises is located to the extent Lender deems such proceeding necessary or advisable to exercise remedies available under this Agreement or the other Loan Documents.      L.       Counterparts. This Agreement and the other Loan Documents may be executed in one or more counterparts, each of which shall be deemed an original.      M.       Assignments by Lender; Binding Effect. Lender may assign in whole or in part its rights under this Agreement, including, without limitation, in connection with any Transfer, Participation or Securitization. Upon any unconditional assignment of Lender’s entire right and interest, including all Lender’s duties and obligations, hereunder, Lender shall automatically be relieved, from and after the date of such assignment, of liability for the performance of any obligation of Lender contained herein. This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of Borrower and Lender and their respective successors and permitted assigns, including, without limitation, any United States trustee, any debtor in possession or any trustee appointed from a private panel.      N.       Survival. Except for the conditions of Closing set forth in Section 4, which shall be satisfied or waived as of the Closing Date, all representations, warranties, agreements, obligations and indemnities of Borrower and Lender set forth in this Agreement and the other Loan Documents shall survive the Closing.      O.       Waiver of Jury Trial and Punitive, Consequential, Special and Indirect Damages. BORROWER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, BORROWER AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM THE OTHER AND ANY OF THE OTHER’S AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER OR ANY OF THE OTHER’S AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER BY BORROWER AND LENDER OF ANY RIGHT THEY MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.      P.       Transfers, Participations and Securitizations. (1) A material inducement to Lender’s willingness to complete the transactions contemplated by the Loan Documents is Borrower’s agreement that Lender may, at any time, complete a Transfer, Participation or Securitization with respect to the Note, Mortgage or any of the other Loan Documents or any or all servicing rights with respect thereto. Baton Rouge, Louisiana 21        (2)       Borrower agrees to cooperate in good faith with Lender in connection with any such Transfer, Participation or Securitization of the Note, Mortgage or any of the other Loan Documents, or any or all servicing rights with respect thereto, including, without limitation (a) providing such documents, financial and other data, and other information and materials (the “Disclosures”) which would typically be required with respect to the Borrower Parties and the Manager by a purchaser, transferee, assignee, servicer, participant, investor or rating agency involved with respect to such Transfer, Participation or Securitization, as applicable; provided, however, the Borrower Parties, and the Manager shall not be required to make Disclosures of any confidential information or any information which has not previously been made public unless required by applicable federal or state securities laws; and (b) amending the terms of the transactions evidenced by the Loan Documents to the extent necessary so as to satisfy the requirements of purchasers, transferees, assignees, servicers, participants, investors or selected rating agencies involved in any such Transfer, Participation or Securitization, so long as such amendments would not have a Material Adverse Effect upon the Borrower Parties or the transactions contemplated hereunder. Lender shall be responsible for preparing at its expense any documents evidencing the amendments referred to in the preceding subitem (b).      (3)       Borrower consents to Lender providing the Disclosures, as well as any other information which Lender may now have or hereafter acquire with respect to the Premises or Manager or the financial condition of the Borrower Parties to each purchaser, transferee, assignee, servicer, participant, investor or rating agency involved with respect to each Transfer, Participation or Securitization, as applicable. Lender and Borrower (and their respective Affiliates) shall each pay their own attorneys’ fees and other out-of-pocket expenses incurred in connection with the performance of their respective obligations under this Section.      (4)       Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents: (a) an Event of Default or a breach or default, after the passage of all applicable notice and cure or grace periods, under any Loan Document or Other Agreement which relates to a loan or sale/leaseback transaction which has not been the subject of a Securitization, Participation or Transfer shall not constitute an Event of Default or a breach or default, as applicable, under any Loan Document or Other Agreement which relates to a loan which has been the subject of a Securitization, Participation or Transfer; (b) an Event of Default or a breach or default, after the passage of all applicable notice and cure or grace periods, under any Loan Document or Other Agreement which relates to a loan which is included in any Loan Pool shall not constitute an Event of Default or a breach or default, as applicable, under any Loan Document or Other Agreement which relates to a loan which is included in any other Loan Pool; (c) the Loan Documents and Other Agreement corresponding to the loans in any Loan Pool shall not secure the obligations of any of the Borrower Parties contained in any Loan Document or Other Agreement which does not correspond to a loan in such Loan Pool; and (d) the Loan Documents and Other Agreement which do not correspond to a loan in any Loan Pool shall not secure the obligations of any of the Borrower Parties contained in any Loan Document or Other Agreement which does correspond to a loan in such Loan Pool.      Q.       Estoppel Certificate. At any time, and from time to time, each party agrees, promptly and in no event later than fifteen (15) days after a request from the other party, to execute, acknowledge and deliver to the other party a certificate in the form supplied by the other party, certifying: (a) to its knowledge, whether there are then any existing defaults by it or the other party in the performance of their respective obligations under this Agreement or any of the other Loan Documents, and, if there are any such defaults, specifying the nature and extent thereof; (b) that no notice of default has been given or received by it under this Agreement or any of the other Loan Documents which has not been cured, except as to defaults specified in the certificate; (c) the capacity of the person executing such certificate, and that such person is duly authorized to execute the same on behalf of it; and (d) any other information reasonably requested by the other party in connection with this Agreement and Baton Rouge, Louisiana 22        R.       Borrower authorizes its banks, creditors, suppliers, customers, and Franchisor to disclose and release to Lender and its representatives any and all information they may request from time to time regarding (a) any depository, loan or other credit account of Borrower; (b) the status of the Franchise Agreement; (c) the affairs and financial condition of Borrower, any other Borrower Party, or any operator or lessee of the Premises; and (d) the business operations at the Premises, including unit level and entity level operating results. Borrower also authorizes Lender and its representatives to obtain personal and business credit reports and asset reports with respect to Borrower and the other Borrower Parties and to answer questions about its credit experience with Borrower and the other Borrower Parties. All of the information which Lender or its representatives obtain from time to time in accordance with this Section, together with any and all other information which Lender or its representatives now possess or in the future may acquire with respect to Borrower, any of the other Borrower Parties, the Collateral, or the business operations at the Premises, is referred to collectively as the “Borrower Information.” Borrower authorizes Lender to disclose the Borrower Information to (i) Lender’s Affiliates and professional advisors and consultants; (ii) Franchisor, upon written request by Franchisor; and (iii) any proposed transferee, purchaser, assignee, servicer, participant, investor, or ratings agency, with respect to any proposed Lender Transfer or sale of any of the Collateral. Borrower also authorizes to distribute to, or publish for the use by, any third-parties for statistical analysis purposes the unit-level or corporate level operating results for the Premises and Borrower prepared by Lender from financial statements obtained from Borrower; provided, however, that such results shall not be identified as relating to Borrower or any of the other Borrower Parties. Baton Rouge, Louisiana 23        IN WITNESS WHEREOF, Borrower and Lender have entered into this Agreement as             LENDER: a Delaware corporation       By /s/ Kelly A. Hallford       Name:   Printed Kelly A. Hallford      Its: Authorized Signatory                  BORROWER: SUMMIT HOTEL PROPERTIES, LLC, a South Dakota limited liability company       By:   /s/ Christopher D. Bills         Name:   Printed Christopher D. Bills        Its: Chief Financial Officer      Baton Rouge, Louisiana 24                 STATE OF ARIZONA     )             )     SS. COUNTY OF ________________________     )            The foregoing instrument was acknowledged before me on                               , 2007 by                               ,                                of General Electric Capital Corporation, a Delaware corporation, on behalf of the corporation.                         Notary Public            My Commission Expires: ___________________________________               STATE OF ARIZONA     )             )     SS. COUNTY OF MARICOPA     )            The foregoing instrument was acknowledged before me on August 13, 2007 by Christopher D. Bills, Chief Financial Officer of Summit Hotel Properties, LLC, a South Dakota limited liability company, on behalf of the limited liability company.                   /s/ Jennifer L. Curry       Notary Public            My Commission Expires: 3/24/2011 Baton Rouge, Louisiana 25   EXHIBIT A DESCRIPTION OF PREMISES A certain tract of land situated in the Parish of East Baton Rouge, State of Louisiana, designated according to a map by Baton Rouge Land Surveying, Inc., dated December 11, 2000 entitled “Map Showing Survey and Resubdivision of Tract E-1-A, a portion of the Former Aldrich Estate into Tract E-1-A-1 & E-1-A-2 located in Section 94, Township 7 South, Range 1 East, GLD, East Baton Rouge Parish, Louisiana for Parkland Investments, Inc.” as Tract E-1-A-1, recorded as Original 722, Bundle 11183 in the official records of the Clerk and Recorder of East Baton Rouge Parish, LA. Tax ID #018-2116-4 Baton Rouge, Louisiana 26   EXHIBIT B Form of Amended and Restated Note [attached]     Exhibit C (Disclosures per Section 5L) None  

Base Salaries of Executive Officers of the Registrant Exhibit 10.6 As of July 1, 2012, the following are the base salaries (on an annual basis) of the executive officers of Old Point Financial Corporation: Robert F. Shuford, Sr.   $ 300,000           Old Point Financial Corporation                   Louis G. Morris   $ 300,000           Old Point Financial Corporation                   Robert F. Shuford, Jr.   $ 220,000   Senior Vice President/Operations         Old Point Financial Corporation                   Joseph R. Witt   $ 217,000   Senior Vice President/Corporate Banking         Old Point Financial Corporation                   Melissa L. Burroughs   $ 177,800   Senior Vice President/Lending & Business Development         Old Point Financial Corporation                   Laurie D. Grabow   $ 176,001           Old Point Financial Corporation                   Eugene M. Jordan, II   $ 164,832   Executive Vice President/Trust         Old Point Financial Corporation            

CHANGE IN CONTROL BENEFITS AGREEMENT This Change in Control Benefits Agreement ("Agreement") is made and entered into as of May 22, 2007, by and between Integra Bank Corporation, an Indiana corporation (hereinafter referred to as the "Company"), and John W. Key (hereinafter referred to as "Employee"). WITNESSETH WHEREAS, Employee is a senior officer of the Company; and WHEREAS, the Company believes that Employee will make valuable contributions to the productivity and profitability of the Company; and WHEREAS, the Company desires to encourage Employee to continue to make such contributions and not to seek or accept employment elsewhere; and WHEREAS, the Company, therefore, desires to assure Employee of certain benefits in case of any termination or significant redefinition of the terms of his employment with the Company subsequent to any Change in Control of the Company; herein contained and the mutual benefits herein provided, the Company and Employee hereby agree as follows: 1.           The term of this Agreement shall be from the date hereof through December 31, 2007; provided, however, that such term shall be automatically extended for an additional year each year thereafter unless either party hereto gives written notice to the other party not to so extend prior to November 30 of the year for which notice is given, in which case no further automatic extension shall occur. 2.           As used in this Agreement, "Change in Control" of the Company means: (A)        The acquisition, within a 12-month period ending on the date of the most recent acquisition, by any individual, entity or group (within the meaning amended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act as in effect from time to time) of thirty-five percent (35%) or more of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors; provided, however, that the following acquisitions shall not constitute an acquisition of control:  (i) any acquisition by a Person who, immediately before the commencement of the 12-month period, already held beneficial ownership of thirty-five percent (35%) or more of that combined voting power; (ii) any acquisition directly from the Company (excluding an acquisition by virtue of the exercise of a conversion privilege), (iii) any acquisition by the Company, (iv) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (v) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization, merger or consolidation, the conditions described in clauses (i), (ii) and (iii) of subsection (C) below are satisfied;         (B)         The replacement of a majority of members of the Board of Directors during any 12-month period, by members whose appointment or election is not endorsed by a majority of the members of the Board of Directors prior to the date of the appointment or election; (C)         A reorganization, merger or consolidation, in each case, unless, following such reorganization, merger or consolidation, (i) more than sixty percent (60%) of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding Company common stock and outstanding Company voting securities immediately prior to such reorganization, merger or consolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the outstanding Company stock and outstanding Company voting securities, as the case may be, (ii) no Person (excluding the Company, any employee benefit plan or related trust of the consolidation and any Person beneficially owning, immediately prior to such reorganization, merger or consolidation, directly or indirectly, twenty-five percent (25%) or more of the outstanding Company common stock or outstanding voting securities, as the case may be) beneficially owns, directly or indirectly, twenty-five percent (25%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the corporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the initial agreement providing for such reorganization, merger or consolidation; (D)        A complete liquidation or dissolution of the Company; or     -2-   (E)         The sale or other disposition of all or substantially all of the assets of the Company, other than any of the following dispositions: (i) to a corporation with respect to which following such sale or other disposition (x) more than sixty percent (60%) of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding Company common stock and outstanding Company voting securities immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the outstanding Company common stock and outstanding Company voting securities, as the case may be, (y) no Person (excluding the Company and any employee benefit plan or related trust of the Company or such corporation and any Person beneficially owning, immediately prior to such sale or other disposition, directly or indirectly, twenty-five Company voting securities, as the case may be) beneficially owns, directly or outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (z) at least a majority of the members of the board of directors of such corporation were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other disposition of assets of the Company; (ii) to a shareholder of the Company in exchange for or with respect to its stock; (iii) to a Person that owns, directly or indirectly, fifty percent (50%) or more of the total value or voting power of all outstanding stock of the Company; or (iv) to an entity, at least fifty percent (50%) or more of the total value or voting power of which is owned, directly or directly, by the Company or by a Person described in clause (iii). Despite any other provision of this Section 2 to the contrary, an occurrence shall not constitute a Change in Control if it does not constitute a change in the ownership or effective control, or in the ownership of a substantial portion of the assets of, the Company within the meaning of Section 409A(a)(2)(A)(v) of the Code and its interpretive regulations. 3.           The Company shall provide Employee with the benefits set forth in Section 6 of this Agreement upon any termination of Employee's employment by the Company within twelve (12) months following a Change in Control for any reason except the following: (A)        Termination by reason of Employee's death. (B)        Termination by reason of Employee's "disability."  For purposes hereof, "disability" mean either (i) when Employee is deemed disabled in accordance with the long-term disability insurance policy or plan of the Company in effect at the time of the illness or injury causing the disability or (ii) the inability of Employee, because of injury, illness, disease or bodily or mental infirmity, to perform the essential functions of his or her job (with or without reasonable accommodation) for more than one hundred twenty (120) days during any period of twelve (12) consecutive months.   -3-   (C)        Termination upon Employee reaching his or her normal retirement date, which for purposes of this Agreement shall be deemed to be the end of the month during which Employee reaches sixty-five (65) years of age. (D)        Termination for "cause."  As used in this Agreement, the term "cause" mean the occurrence of one or more of the following events:  (i) Employee's conviction for a felony or of any crime involving moral turpitude; (ii) Employee's engaging in any illegal conduct or willful misconduct in the performance of his employment duties for the Company (or its affiliates); (iii) Employee's engaging in any fraudulent or dishonest conduct in his dealings with, or on behalf of, the Company (or its affiliates); (iv) Employee's failure or refusal to follow the lawful instructions of the Company, if such failure or refusal continues for a period of five (5) calendar days after the Company delivers to Employee a written notice stating the instructions which Employee has failed or refused to follow; (v) Employee's breach of any of Employee's obligations under this Agreement; (vi) Employee's gross or habitual negligence in the performance of his employment duties for the Company (or its affiliates); (vii) Employee's engaging in any conduct tending to bring the Company into public disgrace or disrepute or to injure the reputation or goodwill of the Company; (viii) Employee's material violation of the Company's business ethics or conflict-of-interest policies, as such policies currently exist or as they may be amended or implemented during Employee's employment with the Company; (ix) Employee's misuse of alcohol or illegal drugs which interferes with the the reputation or goodwill of the Company; (x) Employee's intentional violation of any applicable banking law or regulation in the performance of Employee's employment duties for the Company; or (xi) Employee's failure to abide by any employment rules or policies applicable to the Company's employees generally that Company currently has or may adopt, amend or implement from time to time during Employee's employment with the Company.  4.          The Company shall also provide Employee with the benefits set forth in Section 6 of this Agreement upon any voluntary resignation of Employee if any one of the following events occurs within twelve (12) months following a Change in Control: (A)        Without Employee's express written consent, the assignment of Employee to any duties which are fundamentally and significantly inconsistent with his duties with the Company immediately prior to the Change in Control or a fundamental and substantial reduction of his duties or responsibilities from his duties or responsibilities immediately prior to the Change in Control. (B)         A reduction by the Company in Employee's base salary from the level of such salary immediately prior to the Change in Control.   -4-   (C)         The failure by the Company to continue to provide Employee with benefits substantially similar to those enjoyed by Employee or to which Employee was entitled under any of the Company's incentive compensation or bonus plan, principal pension, profit sharing, life insurance, medical, dental, health and accident, or disability plans in which Employee was participating prior to the Change in Control. (D)        The Company's requiring Employee to relocate other than any of the metropolitan areas where the Company or its subsidiaries maintained offices  5.          Any termination by Company of Employee's employment as contemplated by Section 3 hereof (except subsection 3(A)) or any resignation by Employee as contemplated by Section 4 hereof shall be communicated by a written notice to the other party hereto.  Any notice given by Employee pursuant to Section 4 or given by the Company in connection with a termination as to which the Company believes it is not obligated to provide Employee with benefits set forth in Section 6 hereof shall indicate the specific provisions of this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for such termination. 6.           Subject to the conditions and exceptions set forth in Section 3 and Section 4 hereof, the following benefits, less any amounts required to be withheld therefrom under any applicable federal, state or local income tax, other tax, or social security laws or similar statutes, shall be paid to Employee: (A)        Within thirty (30) days following such a termination, Employee shall be paid, at his then-effective salary, for services performed through the date of his termination.  In addition, any earned but unpaid amount of any bonus or incentive payment (which, for purposes of this Agreement, shall mean that amount computed in a fashion consistent with the manner in which Employee's bonus or incentive plan for the year preceding the year of termination was computed, if Employee received a bonus or incentive payment during such preceding year in accordance with a plan or program of the Company, or, if not, then the total bonus or incentive payment received by the Employee during such preceding year, in either case prorated through the date of termination) shall be paid to Employee within thirty (30) days following the termination of his employment. (B)        Within thirty (30) days following such a termination, Employee shall be paid a lump sum payment of an amount equal to one times Employee's "Base Amount."  For purposes hereof, Base Amount is defined as Employee's average includable salary, bonus, incentive payments and similar compensation paid by the Company for the five (5) most recent taxable years ending before the date on which the Change in Control occurs (or such shorter period of time that the Employee has been employed by the Company).  The definition, interpretation and calculation of the dollar amount of Base Amount shall be in a manner consistent with and as required by the provisions of Section 280G of the Internal Revenue Code of 1986, as amended ("Code"), and the regulations and rulings of the Internal Revenue Service promulgated thereunder.  The payments to the Employee under this Section 6(B) shall be reduced by the full amount that such payment, when added to all other payments or benefits of any kind to the Employee by reason of the Change in Control, constitutes an "excess parachute payment" within the meaning of Section 280G of the Code.   -5-     (C)        Employee acknowledges and agrees that payment in accordance with subsections 6(A), 6(B) and 6(C) shall be deemed to constitute a full settlement and discharge of any and all obligations of the Company to Employee arising out of his employment with the Company and the termination thereof, except for any vested rights Employee may then have under any insurance, pension, supplemental pension, thrift, employee stock ownership, or stock option plans sponsored or made available by the Company. (D)        If as of the date his employment terminates, Employee is a "key employee" within the meaning of Section 416(i) of the Code, without regard to paragraph 416(i)(5) thereof, and the Company has stock that is publicly traded on an established securities market or otherwise, any deferred compensation payments otherwise payable because of employment termination will be suspended until, and will be paid to Employee on, the first day of the seventh month following the month in which Employee's last day of employment occurs.  For purposes of this subsection 6(D), "deferred compensation" means compensation provided under a nonqualified deferred compensation plan as defined in, and subject to, Section 409A of the Code. 7.           In the event of a termination of Employee's employment by the Company for any reason except those set forth in subsections 3(A) through 3(D) prior to a Change in Control, the following benefits, less any amounts required to be withheld therefrom under any applicable federal, state or local income tax, or other social security laws or similar statutes, shall be paid to Employee: (A)        For six months following such a termination, Employee shall be paid a monthly severance benefit equal to his or her salary for the preceding year divided by twelve. (B)         Employee acknowledges and agrees that payment in accordance with subsection 7(A) shall be deemed to constitute a full settlement and discharge of any and all obligations of the Company to Employee arising out of his employment with the Company and the termination thereof, except for any vested rights Employee may then have under any insurance, pension, supplemental pension, thrift, employee stock ownership, or stock option plans sponsored or made available by the Company.   -6-   8.           Employee is not required to mitigate the amount of benefit payments to be made by the Company pursuant to this Agreement by seeking other employment or otherwise, nor shall the amount of any benefit payments provided for in this Agreement be reduced by any compensation earned by Employee as a result of employment by another employer or which might have been earned by Employee had Employee sought such employment, after the date of termination of his employment with the Company or otherwise. 9.           Employee acknowledges that in connection with his employment with the Company he has provided and will continue to provide services that are of a unique and special value and that he has been and will continue to be entrusted with confidential and proprietary information concerning the Company and its affiliates.  Employee further acknowledges that the Company and its affiliates are engaged in highly competitive businesses and that the Company and its affiliates expend substantial amounts of time, money and effort to develop trade secrets, business strategies, customer relationships, employee relationships and goodwill, and Employee has benefited and will continue to benefit from these efforts.  Therefore, as an essential part of this Agreement, Employee agrees and covenants to comply with the following:   (A)        During Employee's employment with the Company and for one year from the date of termination of employment (the “Restriction Period”), Employee will not provide, sell, market or endeavor to provide, sell or market any Competing Products/Services to any of the Company's Customers, or otherwise solicit or communicate with any of the Company's Customers for the purpose of selling or providing any Competing Products/Services.  For purposes of this Agreement, the term "Competing Products/Services" means any products or services similar to or competitive with the products or services offered by the Company or any of its subsidiaries.  For purposes of this Agreement, the term "Company's Customers" means any person or entity that has engaged in any banking services with, or has purchased any products or services from, the Company or any of its subsidiaries at any time during the Restrictive Period.   (B)        During the Restriction Period, Employee will not urge, induce or seek to induce any of the Company's Customers to terminate their business with the Company or to cancel, reduce, limit or in any manner interfere with the Company's Customers' business with the Company.   (C)        During the Restriction Period, Employee will not urge, induce or seek to induce any of the Company's independent contractors, subcontractors, consultants, vendors or suppliers to terminate their relationship with, or representation of, the Company or to cancel, withdraw, reduce, limit, or in any manner modify any of such person's or entity's business with, or representation of, the Company.   (D)        During the Restriction Period, Employee will not solicit, recruit, hire, employ or attempt to hire or employ, or assist anyone in the recruitment or hiring of, any person who is then an employee of the Company, or urge, influence, induce or seek to induce any employee of the Company to terminate his/her relationship with the Company.     -7-     (E)         Employee acknowledges and agrees that the covenants contained in this Section 9 prohibit Employee from engaging in certain activities directly or indirectly, whether on Employee's own behalf or on behalf of any other person or entity, and regardless of the capacity in which Employee is acting, including without limitation as an employee, independent contractor, owner, partner, officer, agent, consultant, or advisor.   (F)         Employee acknowledges and agrees that his obligations under this Section 9 shall survive the expiration or termination of this Agreement and the cessation of his employment with the Company for whatever reason.   (G)        In the event Employee violates any of the restrictive covenants contained in this Section 9, the duration of such restrictive covenant shall automatically be extended by the length of time during which Employee was in violation of such restriction.   (H)        Although Employee and the Company consider the restrictions contained in this Section 9 to be reasonable, particularly given the competitive nature of the Company's business and Employee's position with the Company, Employee and the Company acknowledge and agree that:  (i) if any covenant, subsection, portion or clause of this Section 9 is determined to be unenforceable or invalid for any reason, such unenforceability or invalidity shall not affect the enforceability or validity of the remainder of the Agreement; and (ii) if any particular covenant, subsection, provision or clause of this Section 9 is without limitation, the time period, geographic area, and/or scope of activity covered by any restrictive covenant, such covenant, subsection, provision or clause shall automatically be deemed reformed such that the contested covenant, subsection, provision or clause shall have the closest effect permitted by applicable law to the original form and shall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable under applicable law.   (I)          Employee recognizes that a breach or threatened breach by Employee of Section 9 of this Agreement will give rise to irreparable injury to the Company and that money damages will not be adequate relief for such injury.  Employee agrees that the Company shall be entitled to obtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post any bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal remedies which may be available, including the recovery of money damages.     -8-   (J)         In the event Employee breaches any of the covenants contained in this Section 9 following termination of employment, Employee immediately shall (i) forfeit his right to receive (and the Company shall no longer be obligated to pay) any severance compensation under this Agreement, (ii) forfeit any stock options, stock appreciation and other rights granted under any equity incentive compensation plans of the Company, regardless whether such options or rights are vested, unvested, exercisable or unexercisable, (iii) disgorge and repay to the Company any gross profits realized from the exercise within the two (2) year period immediately preceding such termination of any Company stock options, stock appreciation rights and other rights that were granted during the four (4) year period immediately preceding such termination, (iv) disgorge and repay to the Company an amount equal to the current market value of any restricted stock or other full value equity awards which were granted to Employee within the four (4) year period immediately preceding such termination and vested to Employee during the two (2) year period immediately preceding such termination and (v) repay to the Company any cash incentive or bonus payments paid to Employee within the two (2) year period immediately preceding such termination.  The Company and Employee acknowledge and agree that the foregoing remedies are in addition to, and not in lieu of, any and all other legal and/or equitable remedies that may be available to Company in connection with Employee's breach or threatened breach, of any covenant set forth in this Section 9.   10.         Should Employee die while any amounts are payable to him hereunder, this Agreement shall inure to the benefit of and be enforceable by Employee's executors, administrators, heirs, distributees, devisees and legatees and all amounts payable hereunder shall be paid in accordance with the terms of this Agreement to Employee's devisee, legatee or other designee or if there be no such designee, to his estate. 11.         For purposes of this Agreement, notices and all other communications provided for herein shall be in writing and shall be deemed to have been given when delivered or mailed by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to Employee: John W. Key 2885 Saint Charles Street Jasper, Indiana 47546 Integra Bank Corporation 21 Southeast Third Street P. O. Box 868 Evansville, Indiana  47705-0868 or to such other address as any party may have furnished to the other party in 12.         The validity, interpretation, and performance of this Agreement shall be governed by the laws of the State of Indiana.  The parties agree that all legal disputes regarding this Agreement will be resolved in Evansville, Indiana, and irrevocably consent to service of process in such City for such purpose.   -9-   13.         No provision of this Agreement may be modified, waived or discharged Employee and the Company.  No waiver by any party hereto at any time of any breach by any 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 of similar or dissimilar provisions or conditions at the same or any prior or subsequent time.  No agreements or representation, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by any party which are not set forth expressly in this Agreement. 14.         The invalidity or unenforceability of any provisions of this 15.         This Agreement may be executed in two counterparts, each of which shall be deemed an original, but which together will constitute one and the same Agreement. 16.         This Agreement is personal in nature and neither of the parties hereto shall, without the consent of the other, assign or transfer this Agreement or any rights or obligations hereunder, except as provided in Section 10 above.  Without limiting the foregoing, Employee's right to receive payments hereunder shall not be assignable or transferable, whether by pledge, creation of a security interest or otherwise, other than a transfer by his Will or by the laws of descent and distribution as set forth in Section 10 hereof, and in the event of any attempted assignment or transfer contrary to this Section 16, the Company shall have no liability to pay any amount so attempted to be assigned or transferred. 17.         Any benefits payable under this Agreement shall be paid solely from the general assets of the Company.  Neither Employee nor Employee's beneficiary shall have interest in any specific assets of the Company under the terms of this Agreement.  This Agreement shall not be considered to create an escrow account, trust fund or other funding arrangement of any kind or a fiduciary relationship between Employee and the Company. 18.         This Agreement supersedes any prior change in control or severance agreements or understandings, written or oral, between the parties hereto with respect to the subject matter hereof, and constitutes the entire agreement of the parties with respect thereto. 19.         This Agreement shall be interpreted and applied in a manner consistent with the applicable standards for nonqualified deferred compensation plans established by Section 409A of the Code and its interpretive regulations and other regulatory guidance.  To the extent that any terms of this Agreement would subject Employee to gross income inclusion, interest, or additional tax pursuant to Section 409A of the Code, those terms are to that extent superseded by, and shall be adjusted to the minimum extent necessary to satisfy, the applicable Section 409A of the Code standards.   -10-   IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered as of the day and year first above set forth. INTEGRA BANK CORPORATION     By: /s/ Michael T. Vea   Michael T. Vea, Chairman of the Board and   Chief Executive Officer   ("Company")     /s/ John W. Key ("Employee")   -11-  

EXHIBIT 10.5 LOGO [g24293img1.jpg] 2000 EMPLOYEE STOCK PURCHASE PLAN TABLE OF CONTENTS             Page Section 1        PURPOSE    1 Section 2        DEFINITIONS    1 2.1    “1934 Act”    1 2.2    “Board”    1 2.3    “Code”    1 2.4    “Committee”    1 2.5    “Common Stock”    1 2.6    “Company”    1 2.7    “Compensation”    1 2.8    “Eligible Employee”    1 2.9    “Employee”    2 2.10    “Employer” or “Employers”    2 2.11    “Enrollment Date”    2 2.12    “Grant Date”    2 2.13    “Participant”    2 2.14    “Plan”    2 2.15    “Purchase Date”    2 2.16    “Subsidiary”    2 Section 3        SHARES SUBJECT TO THE PLAN    2 3.1    Number Available.    2 3.2    Adjustments.    3 Section 4        ENROLLMENT    3 4.1    Participation.    3 4.2    Payroll Withholding.    3 Section 5        OPTIONS TO PURCHASE COMMON STOCK    3 5.1    Grant of Option.    3 5.2    Duration of Option.    4 5.3    Number of Shares Subject to Option.    4 5.4    Other Terms and Conditions.    4 Section 6        PURCHASE OF SHARES    4 6.1    Exercise of Option.    4   -I- TABLE OF CONTENTS (continued)             Page 6.2    Delivery of Shares.    5 6.3    Exhaustion of Shares.    5 Section 7        WITHDRAWAL    5 7.1    Withdrawal.    5 Section 8        CESSATION OF PARTICIPATION    5 8.1    Termination of Status as Eligible Employee.    5 Section 9        DESIGNATION OF BENEFICIARY    5 9.1    Designation.    5 9.2    Changes.    6 9.3    Failed Designations.    6 Section 10        ADMINISTRATION    6 10.1    Plan Administrator.    6 10.2    Actions by Committee.    6 10.3    Powers of Committee.    6 10.4    Decisions of Committee.    7 10.5    Administrative Expenses.    7 10.6    Eligibility to Participate.    7 10.7    Indemnification.    7 Section 11        AMENDMENT, TERMINATION, AND DURATION    7 11.1    Amendment, Suspension, or Termination.    7 11.2    Duration of the Plan.    8 Section 12        GENERAL PROVISIONS    8 12.1    Participation by Subsidiaries.    8 12.2    Inalienability.    8 12.3    Severability.    8 12.4    Requirements of Law.    8 12.5    Compliance with Rule 16b-3.    8 12.6    No Enlargement of Employment Rights.    9 12.7    Apportionment of Costs and Duties.    9 12.8    Construction and Applicable Law.    9 12.9    Captions.    9 EXECUTION    9   -II- AMENDED AND RESTATED NOVATEL WIRELESS, INC. SECTION 1 PURPOSE Novatel Wireless, Inc. hereby establishes the Novatel Wireless, Inc. 2000 Employee Stock Purchase Plan, effective as of the Initial Public Offering Date, in order to provide eligible employees of the Company and its participating Subsidiaries with the opportunity to purchase Common Stock through payroll deductions. The Plan is intended to qualify as an employee stock purchase plan under Section 423(b) of the Code. SECTION 2 DEFINITIONS 2.1 “1934 Act” means the Securities Exchange Act of 1934, as amended. Reference to a specific Section of the 1934 Act or regulation thereunder shall include such Section or regulation, any valid regulation promulgated under such Section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such Section or regulation. 2.2 “Board” means the Board of Directors of the Company. specific Section of the Code or regulation thereunder shall include such Section or regulation, any valid regulation promulgated under such Section, and any comparable provision of any future legislation or regulation amending, 2.4 “Committee” shall mean the committee appointed by the Board to administer the Plan. Any member of the Committee may resign at any time by notice in writing mailed or delivered to the Secretary of the Company. As of the effective date of the Plan, the Plan shall be administered by the Compensation Committee of the Board. 2.5 “Common Stock” means the common stock of the Company. 2.6 “Company” means Novatel Wireless, Inc., a Delaware corporation. 2.7 “Compensation” means a Participant’s regular wages. The Committee, in its discretion, may (on a uniform and nondiscriminatory basis) establish a different definition of Compensation prior to an Enrollment Date for all options to be granted on such Enrollment Date. 2.8 “Eligible Employee” means every Employee of an Employer, except (a) any Employee who immediately after the grant of an option under the Plan, would own stock and/or hold outstanding options to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or of any Subsidiary of the Company (including stock attributed to such Employee pursuant to Section 424(d) of the Code), or (b) as provided in the following sentence. The Committee, in its discretion, from time to time may, prior to an Enrollment Date for all options to be granted on such Enrollment Date, determine (on a uniform and nondiscriminatory basis) that an Employee shall not be an Eligible Employee if he or she: (1) has not completed at least two years of service since his or her last hire date (or such lesser period of time as may be determined by the Committee in its discretion), (2) customarily works not more than 20 hours per week (or such lesser period of time as may be determined by the Committee in its discretion), (3) customarily works not more than 5 months per calendar year (or such lesser period of time as may be determined by the Committee in its discretion), or (4) is an officer or other manager. 2.9 “Employee” means an individual who is a common-law employee of any Employer, whether such employee is so employed at the time the Plan is adopted or becomes so employed subsequent to the adoption of the Plan. 2.10 “Employer” or “Employers” means any one or all of the Company, and those Subsidiaries which, with the consent of the Board, have adopted the Plan. 2.11 “Enrollment Date” means such dates as may be determined by the Committee (in its discretion and on a uniform and nondiscriminatory basis) from time to time. 2.12 “Grant Date” means any date on which a Participant is granted an option under the Plan. 2.13 “Participant” means an Eligible Employee who (a) has become a Participant in the Plan pursuant to Section 4.1 and (b) has not ceased to be a Participant pursuant to Section 8 or Section 9. 2.14 “Plan” means the Novatel Wireless, Inc. 2000 Employee Stock Purchase Plan, as set forth in this instrument and as hereafter amended from time to time. 2.15 “Purchase Date” means such dates as may be determined by the Committee (in its discretion and on a uniform and nondiscriminatory basis) from time to time Date. 2.16 “Subsidiary” means any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations other than the last corporation in the unbroken chain then owns stock possessing fifty percent of the other corporations in such chain. SECTION 3 SHARES SUBJECT TO THE PLAN 3.1 Number Available. 181,117 shares of Common Stock are currently available for issuance pursuant to the Plan. On the first day of each fiscal year of the Company, Shares will be added to the Plan equal to the lesser of (a) 0.5% of the outstanding Shares on the   2 last day of the prior fiscal year, (b) 18,000 Shares, or such lesser number of Shares as may be determined by the Board in its sole discretion. Shares sold under the Plan may be newly issued shares or treasury shares. 3.2 Adjustments. In the event of any reorganization, recapitalization, stock split, reverse stock split, stock dividend, combination of shares, merger, consolidation, offering of rights or other similar change in the capital structure of the Company, the Board may make such adjustment, if any, as it deems appropriate in the number, kind and purchase price of the shares available for purchase under the Plan and in the maximum number of shares subject to any option under the Plan. SECTION 4 ENROLLMENT 4.1 Participation. Each Eligible Employee may elect to become a Participant by enrolling or re-enrolling in the Plan effective as of any Enrollment Date. In order to enroll, an Eligible Employee must complete, sign and submit to the Company an enrollment form in such form, manner and by such deadline as may be specified by the Committee from time to time (in its discretion and on a nondiscriminatory basis). Any Participant whose option expires and who has not withdrawn from the Plan automatically will be re-enrolled in the Plan on the Enrollment Date immediately following the Purchase Date on which his or her option expires. Any Participant whose option has not expired and who has not withdrawn from the Plan automatically will be deemed to be un-enrolled from the Participant’s current option and be enrolled as of a subsequent Enrollment Date if the price per Share on such subsequent Enrollment Date is lower than the price per Share on the Enrollment Date relating to the Participant’s current option. 4.2 Payroll Withholding. On his or her enrollment form, each Participant must elect to make Plan contributions via payroll withholding from his or her Compensation. Pursuant to such procedures as the Committee may specify from time to time, a Participant may elect to have withholding equal to a whole percentage from 1% to 10% (or such lesser percentage that the Committee may establish from time to time for all options to be granted on any Enrollment Date). A Participant may elect to increase or decrease his or her rate of payroll withholding by submitting a new enrollment form in accordance with such procedures as may be established by the Committee from time to time. A Participant may stop his or her payroll withholding by submitting a new enrollment form in accordance with such procedures as may be established by the Committee from time to time. In order to be effective as of a specific date, an enrollment form must be received by the Company no later than the deadline specified by the Committee, in its discretion and on a nondiscriminatory basis, from time to time. Any Participant who is automatically re-enrolled in the Plan will be deemed to have elected to continue his or her contributions at the percentage last elected by the Participant. SECTION 5 OPTIONS TO PURCHASE COMMON STOCK 5.1 Grant of Option. On each Enrollment Date on which the Participant enrolls or re-enrolls in the Plan, he or she shall be granted an option to purchase shares of Common Stock.   3 5.2 Duration of Option. Each option granted under the Plan shall expire on the earliest to occur of (a) the completion of the purchase of shares on the last Purchase Date occurring within 24 months of the Grant Date of such option, (b) such shorter option period as may be established by the Committee from time to time prior to an Enrollment Date for all options to be granted on such Enrollment Date, or (c) the date on which the Participant ceases to be such for any reason. Until otherwise determined by the Committee for all options to be granted on an Enrollment Date, the period referred to in clause (b) in the preceding sentence shall mean the period from the applicable Enrollment Date through the last business day prior to the immediately following Enrollment Date. 5.3 Number of Shares Subject to Option. The number of shares available for purchase by each Participant under the option will be established by the Committee from time to time prior to an Enrollment Date for all options to be 5.4 Other Terms and Conditions. Each option shall be subject to the following additional terms and conditions: (a) payment for shares purchased under the option shall be made only through payroll withholding under Section 4.2; (b) purchase of shares upon exercise of the option will be accomplished only in accordance with Section 6.1; (c) the price per share under the option will be determined as provided in Section 6.1; and (d) the option in all respects shall be subject to such other terms and conditions (applied on a uniform and nondiscriminatory basis), as the Committee shall determine from time to time in its discretion. SECTION 6 PURCHASE OF SHARES 6.1 Exercise of Option. Subject to Section 6.2, on each Purchase Date, the funds then credited to each Participant’s account shall be used to purchase whole shares of Common Stock. Any cash remaining after whole shares of Common Stock have been purchased shall be carried forward in the Participant’s account for the purchase of shares on the next Purchase Date. The price per Share of the Shares purchased under any option granted under the Plan shall be eighty-five percent (85%) of the lower of: (a) the closing price per Share on the Grant Date for such option on the NASDAQ National Market System; or (b) the closing price per Share on the Purchase Date on the NASDAQ National Market System; provided, however, that with respect to any Grant Date under the Plan that coincides with the date of the final prospectus for the initial public offering of the Common Stock, the price in clause (a) above shall be the price per Share at which shares of Common Stock are initially offered for sale to the public by the Company’s underwriters in such offering.   4 6.2 Delivery of Shares. As directed by the Committee in its sole discretion, shares purchased on any Purchase Date shall be delivered directly to the Participant or to a custodian or broker (if any) designated by the Committee to hold shares for the benefit of the Participants. As determined by the Committee from time to time, such shares shall be delivered as physical certificates or by means of a book entry system. 6.3 Exhaustion of Shares. If at any time the shares available under the Plan are over-enrolled, enrollments shall be reduced proportionately to eliminate the over-enrollment. Such reduction method shall be “bottom up,” with the result that all option exercises for one share shall be satisfied first, followed by all exercises for two shares, and so on, until all available shares have been exhausted. Any funds that, due to over-enrollment, cannot be applied to the purchase of whole shares shall be refunded to the Participants (without interest thereon). SECTION 7 WITHDRAWAL 7.1 Withdrawal. A Participant may withdraw from the Plan by submitting a completed enrollment form to the Company. A withdrawal will be effective only if it is received by the Company by the deadline specified by the Committee (in its discretion and on a uniform and nondiscriminatory basis) from time to time. When a withdrawal becomes effective, the Participant’s payroll contributions shall cease and all amounts then credited to the Participant’s account shall be distributed to him or her (without interest thereon). SECTION 8 CESSATION OF PARTICIPATION 8.1 Termination of Status as Eligible Employee. A Participant shall cease to be a Participant immediately upon the cessation of his or her status as an Eligible Employee (for example, because of his or her termination of employment from all Employers for any reason). As soon as practicable after such cessation, the Participant’s payroll contributions shall cease and all amounts then credited to thereon). If a Participant is on a Company-approved leave of absence, his or her participation in the Plan shall continue for so long as he or she remains an Eligible Employee and has not withdrawn from the Plan pursuant to Section 7.1. SECTION 9 DESIGNATION OF BENEFICIARY 9.1 Designation. Each Participant may, pursuant to such uniform and designate one or more Beneficiaries to receive any amounts credited to the Participant’s account at the time of his or her death. Notwithstanding any contrary provision of this Section 9, Sections 9.1 and 9.2 shall be operative only after (and for so long as) the Committee determines (on a uniform and nondiscriminatory basis) to permit the designation of Beneficiaries.   5 9.2 Changes. A Participant may designate different Beneficiaries (or may revoke 9.3 Failed Designations. If a Participant dies without having effectively designated a Beneficiary, or if no Beneficiary survives the Participant, the Participant’s Account shall be payable to his or her estate. SECTION 10 ADMINISTRATION 10.1 Plan Administrator. The Plan shall be administered by the Committee. The Committee shall have the authority to control and manage the operation and 10.2 Actions by Committee. Each decision of a majority of the members of the Committee then in office shall constitute the final and binding act of the Committee. The Committee may act with or without a meeting being called or held and shall keep minutes of all meetings held and a record of all actions taken by written consent. 10.3 Powers of Committee. The Committee shall have all powers and discretion necessary or appropriate to supervise the administration of the Plan and to control its operation in accordance with its terms, including, but not by way of limitation, the following discretionary powers: (a) To interpret and determine the meaning and validity of the provisions of the Plan and the options and to determine any question arising under, or in connection with, the administration, operation or validity of the Plan or the options; (b) To determine any and all considerations affecting the eligibility of any employee to become a Participant or to remain a Participant in the Plan; (c) To cause an account or accounts to be maintained for each Participant; (d) To determine the time or times when, and the number of shares for which, options shall be granted; (e) To establish and revise an accounting method or formula for the Plan; (f) To designate a custodian or broker to receive shares purchased under the Plan and to determine the manner and form in which shares are to be delivered to the designated custodian or broker;   6 (g) To determine the status and rights of Participants and their Beneficiaries or estates; (h) To employ such brokers, counsel, agents and advisers, and to obtain such broker, legal, clerical and other services, as it may deem necessary or appropriate in carrying out the provisions of the Plan; (i) To establish, from time to time, rules for the performance of its powers and duties and for the administration of the Plan; (j) To adopt such procedures and subplans as are necessary or appropriate to permit participation in the Plan by employees who are foreign nationals or employed outside of the United States; (k) To delegate to any one or more of its members or to any other person, severally or jointly, the authority to perform for and on behalf of the Committee one or more of the functions of the Committee under the Plan. 10.4 Decisions of Committee. All actions, interpretations, and decisions of the Committee shall be conclusive and binding on all persons, and shall be given the maximum possible deference allowed by law. 10.5 Administrative Expenses. All expenses incurred in the administration of the Plan by the Committee, or otherwise, including legal fees and expenses, shall be paid and borne by the Employers, except any stamp duties or transfer taxes applicable to the purchase of shares may be charged to the account of each Participant. Any brokerage fees for the purchase of shares by a Participant shall be paid by the Company, but fees and taxes (including brokerage fees) for the transfer, sale or resale of shares by a Participant, or the issuance of physical share certificates, shall be borne solely by the Participant. 10.6 Eligibility to Participate. No member of the Committee who is also an employee of an Employer shall be excluded from participating in the Plan if otherwise eligible, but he or she shall not be entitled, as a member of the Committee, to act or pass upon any matters pertaining specifically to his or her own account under the Plan. 10.7 Indemnification. Each of the Employers shall, and hereby does, indemnify and hold harmless the members of the Committee and the Board, from and against any and all losses, claims, damages or liabilities (including attorneys’ fees and amounts paid, with the approval of the Board, in settlement of any claim) arising out of or resulting from the implementation of a duty, act or decision with respect to the Plan, so long as such duty, act or decision does not involve gross negligence or willful misconduct on the part of any such individual. SECTION 11 AMENDMENT, TERMINATION, AND DURATION 11.1 Amendment, Suspension, or Termination. The Board, in its sole discretion, may amend or terminate the Plan, or any part thereof, at any time and for any reason.   7 If the Plan is terminated, the Board, in its discretion, may elect to terminate all outstanding options either immediately or upon completion of the purchase of shares on the next Purchase Date, or may elect to permit options to expire in accordance with their terms (and participation to continue through such expiration dates). If the options are terminated prior to expiration, all amounts then credited to Participants’ accounts which have not been used to purchase shares shall be returned to the Participants (without interest thereon) as soon as administratively practicable. 11.2 Duration of the Plan. The Plan shall commence on the date specified herein, and subject to Section 11.1 (regarding the Board’s right to amend or terminate the Plan), shall remain in effect for ten (10) years from the effective date. SECTION 12 GENERAL PROVISIONS 12.1 Participation by Subsidiaries. One or more Subsidiaries of the Company may become participating Employers by adopting the Plan and obtaining approval for such adoption from the Board. By adopting the Plan, a Subsidiary shall be deemed to agree to all of its terms, including (but not limited to) the provisions granting exclusive authority (a) to the Board to amend the Plan, and (b) to the Committee to administer and interpret the Plan. An Employer may terminate its participation in the Plan at any time. The liabilities incurred under the Plan to the Participants employed by each Employer shall be solely the liabilities of that Employer, and no other Employer shall be liable for benefits accrued by a Participant during any period when he or she was not employed by such Employer. 12.2 Inalienability. In no event may either a Participant, a former Participant or his or her Beneficiary, spouse or estate sell, transfer, anticipate, assign, hypothecate, or otherwise dispose of any right or interest under the Plan; and such rights and interests shall not at any time be subject to the claims of creditors nor be liable to attachment, execution or other legal process. Accordingly, for example, a Participant’s interest in the Plan is not transferable pursuant to a domestic relations order. 12.3 Severability. In the event any provision of the Plan shall be held illegal 12.4 Requirements of Law. The granting of options and the issuance of shares shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or securities exchanges as the Committee may determine are necessary or appropriate. 12.5 Compliance with Rule 16b-3. Any transactions under this Plan with respect to officers (as defined in Rule 16a-1 promulgated under the 1934 Act) are intended to comply with all applicable conditions of Rule 16b-3. To the extent any provision of the Plan or action by the Committee fails to so comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Committee. Notwithstanding any contrary provision of the Plan, if the Committee specifically determines that compliance with Rule 16b-3 no longer is required, all references in the Plan to Rule 16b-3 shall be null and void.   8 12.6 No Enlargement of Employment Rights. Neither the establishment or maintenance of the Plan, the granting of options, the purchase of shares, nor any action of any Employer or the Committee, shall be held or construed to confer upon any individual any right to be continued as an employee of the Employer nor, upon dismissal, any right or interest in any specific assets of the Employers other than as provided in the Plan. Each Employer expressly reserves the right to discharge any employee at any time, with or without cause. 12.7 Apportionment of Costs and Duties. All acts required of the Employers under the Plan may be performed by the Company for itself and its Subsidiaries, and the costs of the Plan may be equitably apportioned by the Committee among the Company and the other Employers. Whenever an Employer is permitted or required under the terms of the Plan to do or perform any act, matter or thing, it shall be done and performed by any officer or employee of the Employers who is thereunto duly authorized by the Employers. 12.8 Construction and Applicable Law. The Plan is intended to qualify as an “employee stock purchase plan” within the meaning of Section 423(b) of the Code. Any provision of the Plan which is inconsistent with Section 423(b) of the Code shall, without further act or amendment by the Company or the Committee, be reformed to comply with the requirements of Section 423(b). The provisions of the Plan shall be construed, administered and enforced in accordance with such Section and with the laws of the State of California (excluding California’s conflict of laws provisions). 12.9 Captions. The captions contained in and the table of contents prefixed to the Plan are inserted only as a matter of convenience, and in no way define, limit, enlarge or describe the scope or intent of the Plan nor in any way shall affect the construction of any provision of the Plan. EXECUTION IN WITNESS WHEREOF, Novatel Wireless, Inc., by its duly authorized officer, has executed this Plan.     NOVATEL WIRELESS, INC.   By:   /s/ Peter V. Leparulo   Title:   CEO   9

Title: Can a company charge in 15 minutes periods? Question:I called a repair company to fix my oven and they sent a technician. I was charged for ''truck fees'' + ''travel fees'' and the time he stayed at my house. After i checked the bill, I noticed that the end time of the service was 10 minutes later than the time the technician left. He left at 1:05 pm, on the bill it is written 1:15 pm I called, with proof, and they explained the difference by saying that they charge by 15 minutes periods. Is this legal? Considering the travel and truck fees? Answer #1: That's very common in most of the mechanical trades, You wouldn't want a $155/hr plumber rounding up would you? 1/4 hour increments is usually in the customer's best interest. Nobody is getting rich off your truck+travel fees, there's barely any money in appliance repair. Pay the bill.

Exhibit Flagstone Re Reports Diluted Book Value per Share of $12.62 for end of Third Quarter HAMILTON, Bermuda(BUSINESS WIRE) – November 3rd, 2008 - Flagstone Reinsurance Holdings Limited (NYSE: FSR) announced third quarter 2008 basic book value per share of $12.68 and diluted book value per share of $12.62, down 14.9% and 12.7% for the quarter (ratios inclusive of dividends), respectively.Net loss available to common shareholders for the quarter ended September 30, 2008 was $(186.5) million, or $(2.18) per diluted share, compared to net income of $66.2 million, or $0.77 per diluted share, for the quarter ended September 30, 2007.Net loss available to common shareholders for the nine months ended September 30, 2008 was $(111.7) million, or $(1.31) per diluted share, compared to net income of $116.6 million, or $1.44 per diluted share, for the nine months ended September 30, 2007. Operating highlights for the three and nine months ended September 30, 2008 and 2007, included the following: Three months ended September 30 Nine months ended September 30 2008 2007 % change 2008 2007 % change (Expressed in millions of U.S. dollars, except % changes and ratios) Operating (loss) income (1) $ (46.8 ) $ 58.0 -180.8 % $ 50.8 $ 105.6 -51.9 % Gross premiums written $ 173.2 $ 123.7 40.0 % $ 686.6 $ 512.1 34.1 % Net premiums earned $ 188.6 $ 138.8 35.9 % $ 465.7 $ 351.9 32.3 % Combined ratio 129.1 % 61.9 % 94.8 % 75.9 % Investment (losses) returns -7.20 % 2.50 % -6.60 % 5.90 % 1Operating income is defined as net income adjusted for net realized and unrealized gains (losses) – investments and net realized and unrealized gains (losses) – other. Chairman Mark Byrne noted: “The third quarter was a challenging one for our industry in that we combined an active hurricane season with tremendous capital markets distress.The combination of these factors has had a negative effect on our financial results, which we would have preferred to avoid, but nonetheless has proven that we are well capitalized, have proactive risk management, and are capable of managing an unprecedented investment environment, where 12 of the 14 asset classes we follow have negative returns for the year.

Exhibit 10.1 EXECUTION COPY FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT This FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “First Amendment”) is made and entered into as of April 21, 2017 by and among CHESAPEAKE LODGING, L.P., a Delaware limited partnership (together with its successors and assigns, the “Borrower”), CHESAPEAKE LODGING TRUST, a Maryland real estate investment trust (the “Parent Guarantor”), each of the financial institutions initially a signatory to the Credit Agreement (as defined below) together with their successors and assigns under Section 13.6 of the Credit Agreement (the “Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Administrative Agent (in such capacity, the “Administrative Agent”). WITNESSETH: WHEREAS, the Borrower, the Parent Guarantor, the Administrative Agent and the Lenders are parties to that certain Fourth Amended and Restated Credit Agreement dated as of March 4, 2015 (the “Credit Agreement”); WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders amend certain terms and conditions of the Credit Agreement as described herein; and WHEREAS, the Administrative Agent and the Lenders party to this First Amendment have agreed to so amend certain terms and conditions of the Credit Agreement, all on the terms and conditions set forth below in this First Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. Amendments to Credit Agreement. Effective as set forth in Section 2 below, the Credit Agreement is hereby amended as set forth in the marked terms on Exhibit A-1 attached hereto (the “Amended Credit Agreement”). In Exhibit A-1 hereto, deletions of text in the Amended Credit Agreement are indicated by struck-through text, and insertions of text are indicated by bold, double-underlined text. Exhibit A-2 attached hereto sets forth a clean copy of the Amended Credit Agreement after giving effect to such amendments. 2. Conditions to Effectiveness.    This First Amendment shall not be effective until the Administrative Agent shall have received counterparts of (a) this First Amendment duly executed and delivered by the Borrower, the Parent Guarantor, the Administrative Agent, and the Required Lenders, (b) duly executed copies of a Reaffirmation of Subsidiary Guaranty in the form of Exhibit B attached hereto from each of the Subsidiary Guarantors identified thereon and (c) the fully executed Term Loan Agreement, dated as of April 21, 2017, among the Borrower, the lenders party thereto and Wells Fargo, as administrative agent (the “Term Loan Agreement”) along with (x) the primary ancillary documents delivered in connection therewith and (y) evidence reasonably satisfactory to Administrative Agent that the Effective Date under and as defined in the Term Loan Agreement has occurred. 3. Representations and Warranties. Except for changes in factual circumstances specifically and expressly permitted under the Loan Documents, the representations and warranties of the Borrower and each other Loan Party contained in Article VII of the Credit Agreement or any other Loan Document to which any of them is a party, are true and correct on and as of the date hereof except      to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty is true and correct on and as of such earlier date. 4. Limited Amendment; Ratification of Loan Documents. Except as specifically amended or modified hereby, the terms and conditions of the Credit Agreement and the other Loan Documents shall remain in full force and effect, and are hereby ratified and affirmed in all respects. This First Amendment shall not be deemed a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Credit Agreement or any other Loan Document, except as expressly set forth herein. 5. Governing Law. This First Amendment shall be governed by, and construed in accordance with, the law of the State of New York. 6. Miscellaneous. This First Amendment may be executed in any number of counterparts, which shall together constitute an entire original agreement, and respective successors and assigns. This First Amendment expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof. Any determination that any provision of this First Amendment or any application hereof is invalid, illegal, or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provisions of this First Amendment. Each of the Borrower and the Parent Guarantor represents and warrants that it has consulted with independent legal counsel of its selection in connection herewith and is not relying on any representations or warranties of the Administrative Agent or the Lenders or their counsel in entering into this First Amendment. This First Amendment shall constitute a Loan Document. ***      IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed as of the date first above written. BORROWER: CHESAPEAKE LODGING, L.P., a Delaware limited partnership By:    Chesapeake Lodging Trust, Its:    General Partner By: /s/ Graham J. Wootten     Title:    Secretary PARENT: CHESAPEAKE LODGING TRUST, a Maryland real estate investment trust Title:    Secretary Signature Page to First Amendment to Fourth Amended and Restated Credit Agreement as the Administrative Agent and a Lender By: /s/ Mark F. Monahan     Name:    Mark F. Monahan Agreement JPMORGAN CHASE BANK, N.A., as a Lender By: /s/ Sangeeta Mahadevan     Name:    Sangeeta Mahadevan Title:    Executive Director Agreement DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender By: /s/ J.T. Johnston Coe     Name:    J.T. Johnston Coe Title:    Managing Director By: /s/ Joanna Soliman     Name:    Joanna Soliman Title:    Vice President Agreement PNC BANK, NATIONAL ASSOCIATION, as a Lender By: /s/ Katie Chowdhry     Name:    Katie Chowdhry Title:    Vice President Agreement as a Lender By: /s/ Rina Kansagra     Name:    Rina Kansagra Title:    Authorized Signatory Agreement TD BANK, N.A., as a Lender By: /s/ John Howell     Name:    John Howell Title:    Vice President Agreement REGIONS BANK, as a Lender By: /s/ T. Barrett Vawter     Name:    T. Barrett Vawter Title:    Vice President Agreement EXHIBIT A-1 Marked Credit Agreement (See Attached) EXHIBIT A-2 Clean Credit Agreement (See Attached) Loan Number: 1002242 CONFORMED COPY as amended by Amendment No. 1 dated as of April 21, 2017 FOURTH AMENDED AND RESTATED CREDIT AGREEMENT Dated as of March 4, 2015 by and among as Borrower, THE FINANCIAL INSTITUTIONS PARTY HERETO AND THEIR ASSIGNEES UNDER SECTION 13.6, as Lenders, as Administrative Agent as Syndication Agent and DEUTSCHE BANK SECURITIES INC., as Documentation Agent WELLS FARGO SECURITIES, LLC J.P. MORGAN SECURITIES LLC, and DEUTSCHE BANK SECURITIES INC. as JOINT LEAD ARRANGERS WELLS FARGO SECURITIES, LLC and J.P. MORGAN SECURITIES LLC, as JOINT BOOK RUNNERS TABLE OF CONTENTS ARTICLE I. Definitions 1 Section 1.1. Definitions. 1 Section 1.2. GAAP; General References; Pacific Time. 38 ARTICLE II. Credit Facility 39 Section 2.1. Loans. 39 Section 2.2. Requests for Loans. 39 Section 2.3. Funding of Loans. 40 Section 2.4. Assumptions Regarding Funding by Lenders. 40 Section 2.5. Amendment and Restatement of Third Amended Credit Agreement; Release of Liens 41 Section 2.6. Rates and Payment of Interest on Loans. 41 Section 2.7. Number of Interest Periods. 42 Section 2.8. Repayment of Loans. 42 Section 2.9. Prepayments. 42 Section 2.10. Late Charges. 43 Section 2.11. Continuation. 43 Section 2.12. Conversion. 44 Section 2.13. Notes. 44 Section 2.14. Voluntary Reductions of the Commitment. 45 Section 2.15. Extension of Maturity Date. 45 Section 2.16. Amount Limitations. 46 Section 2.17. Funds Transfer Disbursements. 46 Section 2.18. Increase in Commitments. 46 ARTICLE III. Payments, Fees and Other General Provisions 48 Section 3.1. Payments. 48 Section 3.2. Pro Rata Treatment. 49 Section 3.3. Sharing of Payments, Etc. 49 Section 3.4. Several Obligations. 50 Section 3.5. Fees. 50 Section 3.6. Computations. 51 Section 3.7. Usury. 51 Section 3.8. Statements of Account. 51 Section 3.9. Defaulting Lenders. 51 Section 3.10. Taxes; Foreign Lenders. 53 Section 3.11. Lender Failure to Make Payment. 57 ARTICLE IV. Borrowing Base Properties; Subsidiary Guarantors 58 Section 4.1. Eligibility of Properties. 58 Section 4.2. Subsidiary Guarantors. 60 Section 4.3. Frequency of Calculations of Unencumbered Borrowing Base Asset Value. 61 ARTICLE V. Yield Protection, Etc. 61 Section 5.1. Additional Costs; Capital Adequacy. 61 Section 5.2. Suspension of LIBOR Loans. 63 Section 5.3. Illegality. 63 Section 5.4. Compensation. 63 Section 5.5. Treatment of Affected Loans. 64 Section 5.6. Affected Lenders. 65 Section 5.7. Change of Lending Office. 65 Section 5.8. Assumptions Concerning Funding of LIBOR Loans. 65 ARTICLE VI. Conditions Precedent 66 Section 6.1. Initial Conditions Precedent. 66 Section 6.2. Conditions Precedent to All Loans. 67 Section 6.3. Conditions as Covenants. 68 ARTICLE VII. Representations and Warranties 68 Section 7.1. Representations and Warranties. 68 Section 7.2. Survival of Representations and Warranties, Etc. 74 ARTICLE VIII. Affirmative Covenants 74 Section 8.1. Preservation of Existence and Similar Matters. 74 Section 8.2. Compliance with Applicable Law. 75 Section 8.3. Maintenance of Property. 75 Section 8.4. Conduct of Business. 75 Section 8.5. Insurance. 75 Section 8.6. Payment of Taxes and Claims. 76 Section 8.7. Books and Records; Inspections. 77 Section 8.8. Use of Proceeds. 77 Section 8.9. Environmental Matters. 78 Section 8.10. Further Assurances. 78 Section 8.11. Intentionally Omitted. 78 Section 8.12. REIT Status. 78 Section 8.13. Exchange Listing. 78 Section 8.14. Operation of Borrowing Base Property. 79 Section 8.15. Completion of Renovations. 79 Section 8.16. Mechanics’ Liens. 80 Section 8.17. Proceedings. 80 Section 8.18. Correction of Defects. 80 Section 8.19. Personal Property. 80 Section 8.20. Approved Ground Leases. 81 ARTICLE IX. Information 81 Section 9.1. Quarterly Financial Statements. 81 Section 9.2. Year End Statements. 81 Section 9.3. Compliance Certificate. 82 Section 9.4. Other Information. 82 Section 9.5. Electronic Delivery of Certain Information. 85 Section 9.6. Public/Private Information. 86 Section 9.7. USA Patriot Act Notice; Compliance. 87 ARTICLE X. Negative Covenants 87 Section 10.1. Financial Covenants. 87 Section 10.2. Negative Pledge. 90 Section 10.3. Restrictions on Intercompany Transfers. 90 Section 10.4. Merger, Consolidation, Sales of Assets and Other Arrangements. 90 Section 10.5. Plans. 92 Section 10.6. Fiscal Year. 92 Section 10.7. Modifications of Organizational Documents. 92 Section 10.8. Material Contracts. 92 Section 10.9. Indebtedness. 93 Section 10.10. Transactions with Affiliates. 94 Section 10.11. Environmental Matters. 94 Section 10.12. Derivatives Contracts. 94 ARTICLE XI. Default 94 Section 11.1. Events of Default. 94 Section 11.2. Remedies Upon Event of Default. 98 Section 11.3. Reserved. 99 Section 11.4. Marshaling; Payments Set Aside. 99 Section 11.5. Allocation of Proceeds. 100 Section 11.6. Intentionally Omitted. 100 Section 11.7. Rescission of Acceleration by Requisite Lenders. 100 Section 11.8. Performance by Administrative Agent. 101 Section 11.9. Rights Cumulative. 101 ARTICLE XII. The Administrative Agent 102 Section 12.1. Appointment and Authorization. 102 Section 12.2. Wells Fargo as Lender. 103 Section 12.3. [Reserved]. 103 Section 12.4. [Reserved]. 103 Section 12.5. Approvals of Lenders. 103 Section 12.6. Notice of Events of Default. 104 Section 12.7. Administrative Agent’s Reliance. 104 Section 12.8. Indemnification of Administrative Agent. 105 Section 12.9. Lender Credit Decision, Etc. 106 Section 12.10. Successor Administrative Agent. 107 Section 12.11. Syndication Agent. 108 Section 12.12. Documentation Agent. 108 Section 12.13. Specified Derivatives Contracts. 108 ARTICLE XIII. Miscellaneous 109 Section 13.1. Notices. 109 Section 13.2. Expenses. 110 Section 13.3. [Reserved]. 111 Section 13.4. Setoff. 111 Section 13.5. Litigation; Jurisdiction; Other Matters; Waivers. 111 Section 13.6. Successors and Assigns. 113 Section 13.7. Amendments and Waivers. 117 Section 13.8. Nonliability of Administrative Agent and Lenders. 119 Section 13.9. Confidentiality. 120 Section 13.10. Indemnification. 121 Section 13.11. Termination; Survival. 122 Section 13.12. Severability of Provisions. 122 Section 13.13. GOVERNING LAW. 122 Section 13.14. Counterparts. 122 Section 13.15. Obligations with Respect to Loan Parties. 122 Section 13.16. No Advisory or Fiduciary Relationship. 123 Section 13.17. Limitation of Liability. 123 Section 13.18. Entire Agreement. 123 Section 13.19. Construction. 124 Section 13.20. Headings. 124 Section 13.21. Joinder by Parent Guarantor. 124 Section 13.22. Acknowledgement and Consent to Bail-In of EEA Financial Institutions.    124 SCHEDULE I         Commitments SCHEDULE II    Initial Borrowing Base Properties SCHEDULE 4.1    Initial Operating Property Values SCHEDULE 7.1(b)    Ownership Structure SCHEDULE 7.1(f)    Properties SCHEDULE 7.1(g)    Indebtedness and Guaranties SCHEDULE 7.1(h)    Material Contracts SCHEDULE 7.1(i)    Litigation SCHEDULE 7.1(s)    Affiliate Transactions EXHIBIT A EXHIBIT B Reserved EXHIBIT C Form of Note EXHIBIT D Form of Notice of Borrowing EXHIBIT E Form of Notice of Continuation EXHIBIT F Form of Notice of Conversion EXHIBIT G Form of Disbursement Instruction Agreement EXHIBIT H Reserved EXHIBIT I Form of Compliance Certificate EXHIBITS J-1-J-4 Forms of U.S. Tax Compliance Certificates THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of March 4, 2015 by and among CHESAPEAKE LODGING, L.P., a limited partnership formed under the laws of the State of Delaware (the “Borrower”), each of the financial institutions initially a signatory hereto together with their successors and assignees under Section 13.6 (the “Lenders”) and WELLS FARGO BANK, NATIONAL ASSOCIATION (the “Administrative Agent”) and joined in by CHESAPEAKE LODGING TRUST, a Maryland real estate investment trust, for the purposes set forth in Section 13.21. WHEREAS, the Borrower, certain of the Lenders and the Administrative Agent entered into that certain Credit Agreement dated July 30, 2010 (as amended by letter agreement dated December 27, 2010, the “Original Credit Agreement”) providing for a $115,000,000 revolving credit facility; and entered into that certain Amended and Restated Credit Agreement dated January 21, 2011 (the “First Amended Credit Agreement”) amending and restating the Original Credit Agreement and providing for (among other things) an increase in the maximum amount of the revolving credit facility to $150,000,000; and entered into that certain Second Amended and Restated Credit Agreement dated October 14, 2011 (the “Second Amended Credit Agreement”) amending and restating the First Amended Credit Agreement and providing for (among other things) an increase in the maximum amount of the revolving credit facility to $200,000,000; and entered into that certain Third Amended and Restated Credit Agreement dated October 25, 2012 (the “Third Amended Credit Agreement”) amending and restating the Second Amended Credit Agreement and providing for (among other things) an increase in the maximum amount of the revolving credit facility to $250,000,000; and WHEREAS, the parties hereto desire to amend and restate the Third Amended Credit Agreement to provide for (among other things) an increase in the maximum amount of the revolving credit facility to $300,000,000 (which increase is being effected by new Commitments in the amount of $50,000,000) and to provide for future increases up to a maximum amount of $450,000,000, all on and subject to the terms and conditions set forth herein. of which are hereby acknowledged by the parties hereto, the parties hereto hereby amend and restate the Third Amended Credit Agreement in its entirety, and Article I. Definitions In addition to terms defined elsewhere herein, the following terms shall have the following meanings for the purposes of this Agreement: “Accession Agreement” means an Accession Agreement substantially in the form of Annex I to the Subsidiary Guaranty. “Account” shall have the meaning ascribed to such term in the Uniform Commercial Code. “Additional Costs” has the meaning given that term in Section 5.1(b). “Adjusted EBITDA” means, for any given period, EBITDA, less a reserve equal to four percent (4%) of the aggregate amount of the Gross Operating Revenues of all Properties of the Parent Guarantor and its Subsidiaries, determined on a consolidated basis for such period. “Adjusted NOI” means, as determined for any period of time with respect to any one or more Hotel Properties, the Net Operating Income of such Hotel Property or Hotel Properties, subject to the following adjustments: (a)    for each applicable Property management fees shall equal the greater of (i) three percent (3%) of Gross Operating Revenues or (ii) the actual management fees paid under the applicable Management Agreement; (b)    for each applicable Property reserves for FF&E and capital items shall equal the greater of (i) four percent (4%) of Gross Operating Revenues or (ii) the amount of reserves required under the applicable Management Agreement or Franchise Agreement; and (c)    for each applicable Property franchise fees shall equal the greater of (i) the actual amount of franchise fees paid with respect to such Property during such period and (ii) an imputed franchise fee in the amount of four percent (4.0%) of Gross Operating Revenues for such Property for such period; provided however, for purposes of this definition, no imputed franchise fee shall be deducted from Net Operating Income with respect to any Property that is not subject to a Franchise Agreement. For purposes of determining Adjusted NOI for any period of twelve months, Net Operating Income of any Hotel Property that was acquired during such period shall be included within such Adjusted NOI for the entirety of such twelve-month period, including Net Operating Income of such Hotel Property during any portion of such period that occurred prior to such acquisition (adjusted as provided above), as determined by the Borrower (subject to the reasonable approval of the Administrative Agent) based on the operating statements received from the prior owner or operator. “Adjusted Total Asset Value” means Total Asset Value determined exclusive of assets that are owned by Excluded Subsidiaries or Unconsolidated Affiliates. “Administrative Agent” means Wells Fargo Bank, National Association as contractual representative of the Lenders under this Agreement, or any successor Administrative Agent appointed pursuant to Section 12.10. “Administrative Questionnaire” means the Administrative Questionnaire completed by each Lender and delivered to the Administrative Agent in a form supplied by the Administrative Agent to the Lenders from time to time. “Affected Lender” has the meaning given that term in Section 5.6. “Affiliate” means, with respect to any Person, (a) any Person which is directly or indirectly Controlled by, Controls or is under common Control with such Person, (b) any other Person who is an officer, director, trustee or employee of, or partner in, such Person or any Person referred to in the preceding clause (a), (c) any other Person who is a member of the immediate family of such Person or of any Person referred to in the preceding clauses (a) and (b), and (d) any other Person that is a trust solely for the benefit of one or more Persons referred to in clause (c) and of which such Person is sole trustee; provided, however, in no event shall the Administrative Agent or any Lender or any of their respective Affiliates be an Affiliate of Borrower. “Agreement Date” means the date as of which this Agreement is dated. “Anti-Corruption Laws” means all Applicable Laws of any jurisdiction concerning or relating to bribery, corruption or money laundering, including without limitation, the Foreign Corrupt Practices Act of 1977. “Anti-Money Laundering Laws” means any and all Applicable Laws related to the financing of terrorism or money laundering, including without limitation, any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s), 1820(b) and 1951-1959). “Applicable Capitalization Rate” means (a) 7.25% for Upscale, Upper-Upscale or Luxury (as defined by Smith Travel Research or any successor thereto or substitute therefor reasonably acceptable to the Administrative Agent) Hotel Properties located in downtown or central business district locations in Boston, Chicago, Manhattan, San Francisco and Washington, DC and (b) 8.00% for all other Hotel Properties.  “Applicable Law” means all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, including all orders and decrees of all courts, tribunals and arbitrators, in each case whether or not having the force of law, applicable to a Loan Party, the Administrative Agent or any Lender, as the context requires. “Applicable Margin” means the percentage rate set forth below corresponding to the Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 9.3 (subject to the provisions of this definition) : Applicable Margin Pricing Level Leverage Ratio Applicable Margin for LIBOR Loans Applicable Margin for Base Rate Loans I < 35.0% 1.55% 0.55% II ≥ 35.0% < 40.0% 1.60% 0.60% III ≥ 40.0% < 45.0% 1.65% 0.65% IV ≥ 45.0% < 50.0% 1.95% 0.95% V ≥ 50.0% < 55.0% 2.10% 1.10% VI ≥ 55.0% 2.30% 1.30% The Applicable Margin shall be determined and adjusted quarterly on the date (each a “Calculation Date”) ten (10) Business Days after the day by which the Borrower is required to provide a Compliance Certificate pursuant to Section 9.3 for the most recently ended fiscal quarter of the Parent Guarantor; provided that (a) the Applicable Margin shall be based on Level I until the first Calculation Date occurring after the Effective Date, and thereafter the Applicable Margin shall be determined by reference to the Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Parent Guarantor preceding the applicable Calculation Date, and (b) if the Borrower fails to provide the  Compliance Certificate as required by Section 9.3 for the most recently ended fiscal quarter of the Parent Guarantor preceding the applicable Calculation Date, then the Applicable Margin from such Calculation Date shall be based on Level VI until such time as an appropriate Compliance Certificate is provided, at which time the Applicable Margin shall be determined by reference to the Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Parent Guarantor preceding such Calculation Date.  The Applicable Margin shall be effective from and including one Calculation Date until but excluding the next Calculation Date.  Any adjustment in the Applicable Margin shall be applicable to all Loans then outstanding or subsequently made. Notwithstanding the foregoing paragraph, in the event that any financial statement or Compliance Certificate delivered pursuant to Section 9.1, 9.2 or 9.3 is shown to be inaccurate (regardless of whether (i) this Agreement is in effect, (ii) the Commitments are in effect, or (iii) any Loan is outstanding when such inaccuracy is discovered or such financial statement or Compliance Certificate was delivered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin actually applied for such Applicable Period, then (A) the Borrower shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (B) the Applicable Margin for such Applicable Period shall be determined as if the Leverage Ratio in the corrected Compliance Certificate were applicable for such Applicable Period, and (z) the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with Section 3.2.  Nothing in this paragraph shall limit the rights of the Administrative Agent and Lenders with respect to Section 2.6(a) or Section 11.2 nor any of their other rights under this Agreement.  The Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder. “Approved Annual Budget” has the meaning given that term in Section 9.4(h). “Approved Capital Budget” has the meaning given that term in Section 9.4(h). “Approved Fund” means any Fund that is administered, managed or underwritten by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of any entity that administers or manages a Lender. “Approved Ground Lease” means, with respect to a Hotel Property, a ground lease that (a) has a remaining term (including renewal options that are exercisable without condition) of not less than fifty (50) years at the time such Hotel Property is first included as a Borrowing Base Property, or in the event that such remaining term is less than fifty (50) years, such ground lease either (i) contains an unconditional end-of-term purchase option in favor of the lessee for consideration that is, in the reasonable judgment of the Administrative Agent, de minimus or (ii) provides that the lessee’s leasehold interest therein automatically becomes a fee-owned interest at the end of the term, (b) permits a leasehold mortgage on terms satisfactory to Administrative Agent, (c) provides that such lease may not be terminated by the ground lessor without prior notice to the leasehold mortgagee and an opportunity for such leasehold mortgagee to cure any default by the lessee (including adequate time for the leasehold mortgagee to obtain possession to effect such cure), (d) does not place any material restrictions on the leasehold mortgagee’s ability to sell or transfer such Hotel Property after foreclosure; and (e) is otherwise satisfactory to the Administrative Agent in its reasonable judgment. “Arrangers” means Wells Fargo Securities, LLC, J.P. Morgan Securities, LLC and Deutsche Bank Securities Inc. in their capacities as Lead Arrangers and Joint Bookrunners. “Assignment and Assumption” means an Assignment and Assumption Agreement among a required by Section 13.6) and accepted by the Administrative Agent, substantially in the form of Exhibit A or any other form approved by the Administrative Agent. “Baby REIT” means a Subsidiary of the Borrower that has elected or will elect, within the time period permitted under the Internal Revenue Code, to be taxed as a REIT, and in which 100% of the common Equity Interests of such Subsidiary are owned by the Borrower or a Wholly Owned Subsidiary of the Borrower, provided, however, that such Subsidiary shall cease to be a Baby REIT if, at any time after its election to be taxed as a REIT, it ceases to be taxed as a REIT. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution. “Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. “Bankruptcy Code” means the Bankruptcy Code of 1978, as amended. “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding (under the Bankruptcy Code or otherwise), or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person. “Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus 0.50% and (c) the LIBOR Market Index Rate plus 1.0%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate or the LIBOR Market Index Rate (provided that clause (c) shall not be applicable during any period in which LIBOR is unavailable or unascertainable). “Base Rate Loan” means a Loan bearing interest at a rate based on the Base Rate. “Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group. “Book Value” means, with respect to any asset, the book value of such asset as “Borrower” has the meaning set forth in the introductory Paragraph hereof and shall include the Borrower’s permitted assigns. “Borrower’s Agents” means James Francis, Douglas Vicari, Graham Wootten or Nishil Patel as the Borrower’s duly authorized agents, or such other and/or additional authorized agents as the Borrower shall designate in writing to Administrative Agent. “Borrowing Base Pool” means, collectively, the Hotel Properties that constitute Borrowing Base Properties. “Borrowing Base Property” means an Eligible Property that the Administrative Agent and the Lenders have agreed to include in calculations of the provisions of Section 10.1(b)(ii), (f) and (g). Unless otherwise approved by the Requisite Lenders, a Property shall cease to be a Borrowing Base Property if at any time such Property shall cease to be an Eligible Property. “Borrowing Base Property Removal” has the meaning given that term in Section 4.1(d). “Business Day” means (a) for all purposes other than as set forth in clause (b) below, any day (other than a Saturday, Sunday or legal holiday) on which banks in San Francisco, California and New York, New York, are open for the conduct of their commercial banking business, and (b) with respect to all notices and any LIBOR Loan, or any Base Rate Loan as to which the interest rate is determined by reference to LIBOR, any day that is a Business Day described in clause (a) and that is also a day for trading by and between banks in Dollar deposits in the London interbank market. Unless specifically referenced in this Agreement as a Business Day, all references to “days” shall be to calendar days. “Capitalized Lease Obligation” means obligations under a lease (to pay rent or other amounts under any lease or other arrangement conveying the right to use) that are required to be capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of such obligation determined in accordance with GAAP. “Cash Equivalents” means: (a) securities issued, guaranteed or insured by the United States of America or any of its agencies with maturities of not more than one (1) year from the date acquired; (b) certificates of deposit with maturities of not more than one (1) year from the date acquired issued by a United States federal or state chartered commercial bank of recognized standing, or a commercial bank organized under the laws of any other country which is a member of the Organisation for Economic Cooperation and Development, or a political subdivision of any such country, acting through a branch or agency, which bank has capital and unimpaired surplus in excess of $500,000,000 and which bank or its holding company has a short term commercial paper rating of at least A 2 or the equivalent by S&P or at least P 2 or the equivalent by Moody’s; (c) reverse repurchase agreements with terms of not more than seven days from the date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having the qualifications described in clause (b) above; (d) commercial paper issued by any Person incorporated under the laws of the United States of America or any State thereof and rated at least A 2 or the equivalent thereof by S&P or at least P 2 or the equivalent thereof by Moody’s, in each case with maturities of not more than one (1) year from the date acquired; and (e) investments in money market funds registered under the Investment Company Act of 1940, as amended, which have net assets of at least $500,000,000 and at least 85% of whose assets consist of securities and other obligations of the type described in clauses (a) through (d) above. “Chattel Paper” shall have the meaning ascribed to such term in the Uniform Commercial Code. “Commitment” means, as to each Lender, such Lender’s obligation to make Loans pursuant to Section 2.1 in an amount up to, but not exceeding the amount set forth for such Lender on Schedule I as such Lender’s “Commitment Amount” or increases in any Commitment under Section 2.19, or the amount of any new Commitment allocated to a new Lender under Section 2.19) (as the same may be assigned in accordance with this Agreement) in each case as the same may be reduced from time to time pursuant to Section 2.14 or otherwise pursuant to the terms of this Agreement. “Commitment Percentage” means, as to each Lender the ratio, expressed as a percentage, of (a) the amount of such Lender’s Commitment to (b) the aggregate amount of the Commitments of all Lenders hereunder; provided, however, that if at the time of determination the Commitments have been terminated or been reduced to zero, the “Commitment Percentage” of each Lender with a Commitment shall be the “Commitment Percentage” of such Lender in effect immediately prior to such termination or reduction. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) as amended from time to time, and any successor statute. “Compliance Certificate” has the meaning given that term in Section 9.3. “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. “Continue”, “Continuation” and “Continued” each refers to the continuation of a LIBOR Loan from one Interest Period to another Interest Period pursuant to Section 2.11. “Contracts” means all contracts, agreements and warranties relating to or governing the use, occupancy, operation, management, hotel group, name or chain affiliation and/or guest reservation, repair and service of a Property, and all leases, occupancy agreements, concession agreements, and commitments to provide rooms or facilities in the future, including all amendments, modifications and supplements to any of the foregoing. through the ownership of voting securities, by contract or otherwise. “Convert”, “Conversion” and “Converted” each refers to the conversion of a Loan of one Type into a Loan of another Type pursuant to Section 2.12. “Credit Event” means any of the following: (a) the making (or deemed making) of any Loan, (b) the Conversion of a Loan and (c) the Continuation of a LIBOR Loan. “Credit Party” means the Administrative Agent or any other Lender. “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar Applicable Laws relating to the relief of debtors in the United States of America or other applicable jurisdictions from time to time in effect. “Default” means any event that, with the giving of notice, the lapse of time, or both, would constitute an Event of Default. “Defaulting Lender” means, subject to Section 3.9(d), any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative 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 Administrative Agent or any other Lender any other amount required to be paid by it hereunder within 2 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), (c) has failed, within 3 Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) or become the subject of a Bail-In Action or (iii) had appointed for it a receiver, custodian, conservator, charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.9(d)) upon delivery of written notice of such determination to the Borrower and each Lender. “Departing Lender” means each lender under the Third Amended Credit Agreement that does not have a Commitment hereunder and is identified as a Departing Lender on the signature pages hereto. “Derivatives Contract” means (a) any transaction (including any master agreement, confirmation or other agreement with respect to any such transaction) now existing or hereafter entered into by the Parent Guarantor or any Subsidiary (i) which is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions) or (ii) which is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets (including terms and conditions incorporated by reference in such agreement) and which is a forward, swap, future, option or other derivative on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made, and (b) any combination of these transactions. “Derivatives Termination Value” means, in respect of any one or more Derivatives Contracts, after taking into account the effect of any legally enforceable netting agreement or provision relating thereto, (a) for any date on or after the date such Derivatives Contracts have been terminated or closed out, the termination amount or value determined in accordance therewith, and (b) for any date prior to the date such Derivatives Contracts have been terminated or closed out, the then-current mark-to-market value for such Derivatives Contracts, determined based upon one or more mid-market quotations or estimates provided by any recognized dealer in Derivatives Contracts (which may include the Administrative Agent, any Lender, any Specified Derivatives Provider or any Affiliate of any thereof). “Designated Subsidiary” means, in the event that Adjusted Total Asset Value attributable to assets directly owned by the Borrower and the then-existing Guarantors shall be less than ninety percent (90%) of Adjusted Total Asset Value, a Subsidiary (which does not otherwise constitute a Material Subsidiary) designated by the Borrower (or, in the event the Borrower has failed to do so in ten (10) Business Days, the Administrative Agent) to become a Guarantor such that Adjusted Total Asset Value attributable to assets directly owned by the Borrower and the Guarantors shall at all times equal or exceed ninety percent (90%) of Adjusted Total Asset Value and all such Designated Subsidiaries shall for all purposes of this Agreement and the other Loan Documents constitute Material Subsidiaries. “Development/Redevelopment Property” means a Property that Parent Guarantor or any Subsidiary or Unconsolidated Affiliate is developing or renovating, that upon completion will constitute a Hotel Property and that is currently under development and not an operating property during such development and, subject to the last sentence of this definition, on which the improvements related to the development have not been completed. The term “Development/Redevelopment Property” shall include real property of the type described in the immediately preceding sentence that satisfies both of the following conditions: (i) it is to be (but has not yet been) acquired by the Parent Guarantor, any Subsidiary or any Unconsolidated Affiliate upon completion of construction pursuant to a contract in which the seller of such real property is required to develop or renovate prior to, and as a condition precedent to, such acquisition and (ii) a third party is developing such property using the proceeds of a loan that is Guaranteed by, or is otherwise recourse to, the Parent Guarantor, any Subsidiary or any Unconsolidated Affiliate. A Development/Redevelopment Property on which all improvements (other than tenant improvements on unoccupied space) related to the development of such Hotel Property have been completed for at least four (4) full fiscal quarters shall cease to constitute a Development/Redevelopment Property; provided, however, that Borrower shall be permitted to designate such Property as a Seasoned Property at any earlier time. form of Exhibit G to be executed and delivered by the Borrower pursuant to Section 6.1, as the same may be amended, restated or modified from time to time with the prior written approval of the Administrative Agent. “Documentation Agent” means Deutsche Bank Securities Inc. “Dollars” or “$” means the lawful currency of the United States of America. “EBITDA” means, with respect to a Person for any period and without duplication, the sum of: (a) net income (or loss) before minority interests of such Person for such period determined on a consolidated basis, excluding the following (but only to the extent included in determining net income (loss) for such period): (i) depreciation and amortization; (ii) interest expense; (iii) income tax expense; (iv) extraordinary or nonrecurring items, including, without limitation, gains and losses from the sale of operating Hotel Properties; (v) closing costs related to the acquisition of properties that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period; (vi) other non-cash charges, including share based compensation amortization expense and impairment charges (other than non-cash charges that constitute an accrual of a reserve for future cash payments); and (vii) equity in net income (loss) of its Unconsolidated Affiliates; plus  (b) such Person’s Ownership Share of EBITDA of its Unconsolidated Affiliates. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Effective Date” means the later of (a) the Agreement Date and (b) the date on which all of the conditions precedent set forth in Section 6.1 shall have been fulfilled or waived. “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 13.6(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 13.6(b)(iii)). “Eligible Property” means a Hotel Property which satisfies all of the following requirements as confirmed by the Administrative Agent: (a) such Property is owned in fee simple (or located on land leased under an Approved Ground Lease) by the Borrower or an Eligible Subsidiary; (b) such Property is located in a state (other than Alaska) of the United States of America or in the District of Columbia; (c) such Property is an Upscale, Upper-Upscale or Luxury (as defined by Smith Travel Research or any successor thereto or substitute therefor reasonably acceptable to the Administrative Agent) Hotel Property located in a Top 50 Market or destination resort market (as approved by the Administrative Agent); (d) such Property is currently open for business to the public and either (i) subject to a Franchise Agreement (or solely a Management Agreement) with a Major Hotel Operator or (ii) an independent Hotel Property in downtown or central business district locations; (e) such Property is free of all material structural and title defects, as evidenced by a seismic report with respect to any Property located in an earthquake zone (addressed to the Administrative Agent and prepared by an architect or engineer acceptable to the Administrative Agent) and ALTA survey; (f) such Property is free from significant Hazardous Materials and in compliance in all material respects with all Environmental Laws and not subject to any environmental liabilities in excess of $750,000; (g) such Property has all material occupancy and operating permits and licenses and insurance policies as required pursuant to Section 8.5, (h) the Borrower has the right directly, or indirectly through an Eligible Subsidiary, to take the following actions without the need to obtain the consent of any Person: (i) to create Liens on such Property as security for Indebtedness of the Borrower or such Eligible Subsidiary, and (ii) to sell, transfer or otherwise dispose of such Property (other than to the extent restricted pursuant to Management Agreements and Franchise Agreements consistent with applicable industry practice); (i) neither such Property, nor if such Property is owned by a Subsidiary, any of the Borrower’s direct or indirect ownership interest in such Subsidiary is subject to (i) any Lien other than Permitted Liens or (ii) any Negative Pledge; and (j) the Administrative Agent has received, in form and substance satisfactory to the Administrative Agent, the information and reports required pursuant to Section 4.1(b) with respect to such Property. “Eligible Subsidiary” means a Subsidiary of the Borrower that is (i) either a Wholly-Owned Subsidiary or a Baby REIT, and (ii) a Subsidiary Guarantor. “Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to human health or the environment as a result of Hazardous Materials. “Environmental Laws” means any Applicable Law relating to environmental protection or the manufacture, storage, remediation, transport, treatment, disposal or clean up of Hazardous Materials including, without limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the Environmental Protection Agency, any applicable rule of common law and any judicial interpretation thereof relating primarily to the environment or Hazardous Materials, and any analogous or comparable state or local laws, regulations or ordinances that concern Hazardous Materials or protection of the environment. “Equipment” shall have the meaning ascribed to such term in the Uniform Commercial Code. “Equity Interest” means, with respect to any Person, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person whether or not certificated, any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant, right or option for the purchase or other acquisition from such Person of such shares (or such other interests), and any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date of determination. “Equity Issuance” means any issuance or sale by a Person of any Equity Interest in such Person. “ERISA Group” means the Borrower, any Subsidiary and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any Subsidiary, are treated as a single employer under Section 414 of the Internal Revenue Code. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect “Eurodollar Reserve Percentage” means, for any day, the percentage which is in effect for such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City. “Event of Default” means any of the events specified in Section 11.1, provided that any requirement for notice or lapse of time or any other condition has been satisfied. “Excluded Operating Property Value” means the sum of (a) the excess of (x) the Operating Property Value of Borrowing Base Properties subject to Approved Ground Leases over (y) 25% of the aggregate Operating Property Value of the Borrowing Base Pool, plus (b) the excess of (x) the Operating Property Value of Development/Redevelopment Properties and Borrowing Base Properties undergoing Major Renovations over (y) 25% of the aggregate Operating Property Value of the Borrowing Base Pool, plus (c) the excess of (x) the Operating Property Value of any Borrowing Base Property over (y) 35% of the aggregate Operating Property Value of the Borrowing Base Pool plus (d) the excess of (x) the Operating Property Value of all Borrowing Base Properties located in a single MSA or Top 50 Market over (y) 35% of the Operating Property Value of the Borrowing Base Pool. “Excluded Subsidiary” means any Subsidiary (other than the Borrower) of the Parent Guarantor (a) holding title to assets that are or are to become collateral for any Secured Indebtedness of such Subsidiary and (b) that is prohibited from guarantying the Indebtedness of any other Person pursuant to (i) any document, instrument or agreement evidencing such Secured Indebtedness or (ii) a provision of such Subsidiary’s organizational documents which provision was included in such Subsidiary’s organizational documents as a condition to the extension of such Secured Indebtedness; provided, however, in addition to the foregoing, any Baby REIT which holds only Equity Interests in an Excluded Subsidiary shall also constitute an Excluded Subsidiary. “Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the liability of such Loan Party for or the Guarantee of such Loan Party of, or the grant by such Loan Party of a Lien to secure, such Swap Obligation (or any liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the liability for or the Guarantee of such Loan Party or the grant of such Lien becomes effective with respect to such Swap Obligation (such determination being made after giving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Loan Party, including under Section 31 of the Subsidiary Guaranty). If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or Lien is or becomes illegal for the reasons identified in the immediately preceding sentence of this definition. “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to an Applicable Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.10, amounts with respect to such Taxes were payable by Borrower or the Loan Parties either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.10(g) and (d) any U.S. federal withholding Taxes imposed under FATCA. “Extended Maturity Date” means March 4, 2020. “Extension Term” means, if the Maturity Date is extended pursuant to Section 2.15, the period of time after the Original Maturity Date. “Fair Market Value” means, with respect to any asset, the price which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing buyer, neither of which is under pressure or compulsion to complete the transaction. Except as otherwise provided herein, Fair Market Value shall be determined by the Board of Trustees of the Parent Guarantor (or an authorized committee thereof) acting in good faith conclusively evidenced by a board resolution thereof delivered to the Administrative Agent or, with respect to any asset valued at no more than $5,000,000, such determination may be made by the chief financial officer of the Borrower evidenced by an officer’s certificate delivered to the Administrative Agent. “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code. annum equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the Administrative Agent from three (3) Federal Funds brokers of recognized standing selected by the Administrative Agent; provided, that, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “Fee Letter” means that certain fee letter dated as of January 22, 2015, by and among the Borrower, the Administrative Agent, the Syndication Agent and certain of the Arrangers. “Fees” means the fees and commissions provided for or referred to in Section 3.5 and any other fees payable by the Borrower hereunder, under any other Loan Document or under the Fee Letter. “FF&E” means all fixtures, furnishings, equipment, furniture, and other items of tangible personal property now or hereafter located on a Borrowing Base Property or used in connection with the use, occupancy, operation and maintenance of all or any part of such Borrowing Base Property, other than stocks of food and other supplies held for consumption in normal operation but including, without limitation, appliances, machinery, equipment, signs, artwork, office furnishings and equipment, guest room furnishings, and specialized equipment for kitchens, laundries, bars, restaurants, public rooms, health and recreational facilities, dishware, all partitions, screens, awnings, shades, blinds, floor coverings, hall and lobby equipment, heating, lighting, plumbing, ventilating, refrigerating, incinerating, elevators, escalators, air conditioning and communication plants or systems with appurtenant fixtures, vacuum cleaning systems, call or beeper systems, security systems, sprinkler systems and other fire prevention and extinguishing apparatus and materials; reservation system computer and related equipment; all equipment, manual, mechanical or motorized, for the construction, maintenance, repair and cleaning of parking areas, walks, underground ways, truck ways, driveways, common areas, roadways, highways and streets; and the vehicles. “FF&E Reserve” means, for any calendar month for any Hotel Property, an amount equal to the greater of (i) four percent (4%) of Gross Operating Revenues for such calendar month or (ii) the amount of FF&E or capital reserves required under the applicable Management Agreement or Franchise Agreement. “FIRREA” means the Financial Institution Recovery, Reform and Enforcement Act of 1989, as amended. “Fixed Charge Coverage Ratio” means the ratio of (i) Adjusted EBITDA of the Parent Guarantor and its consolidated Subsidiaries for any period of four consecutive fiscal quarters most recently ending to (ii) Fixed Charges of the Parent Guarantor and its consolidated Subsidiaries for such period. “Fixed Charges” means, with respect to a Person and for a given period, the sum of (a) the Interest Expense of such Person for such period, plus (b) the aggregate of all regularly scheduled principal payments on Indebtedness payable by such Person during such period (excluding balloon, bullet or similar payments of principal due upon the stated maturity of Indebtedness), plus (c) the aggregate amount of all Preferred Dividends paid by such Person during such period, plus (d) the aggregate of all payments by such Person in respect of Capitalized Lease Obligations. The Parent Guarantor’s Ownership Share of the Fixed Charges of its Unconsolidated Affiliates will be included when determining the Fixed Charges of the Parent Guarantor. “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. “Franchise Agreement” means a license or franchise agreement between a Subsidiary Guarantor or Operating Lessee and a Franchisor. “Franchisor” means a Person that licenses or franchises its hotel brand to hotel owners or operators. loans, bonds and similar extensions of credit in the ordinary course of its business. “Funds From Operations” means net income available to common shareholders (computed in accordance with GAAP), excluding gains (or losses) from sales of property, plus depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures. Adjustments for unconsolidated partnership and joint ventures will be calculated to reflect funds from operations on the same basis. For purposes of this Agreement, Funds From Operations shall be calculated consistent with the White Paper on Funds From Operations dated April 2002 issued by National Association of Real Estate Investment Trusts, Inc., but without giving effect to any supplements, amendments or other modifications promulgated after the Agreement Date. “GAAP” means United States generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination. “General Intangibles” shall have the meaning ascribed to such term in the Uniform Commercial Code. “Governmental Approvals” means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities. “Governmental Authority” means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi governmental, judicial, administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board, department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority) exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), or any arbitrator with authority to bind a party at law. “Gross Operating Revenues” means, for any period of time for any Property, without duplication, all income and proceeds of sales of every kind (whether in cash or on credit and computed on an accrual basis) received by the applicable Subsidiary Guarantor, Operating Lessee or Manager for the use, occupancy or enjoyment of the Property or the sale of any goods, services or other items sold on or provided from the Property in the ordinary course of operation of the Property, including, without limitation, all income received from tenants, transient guests, lessees (other than communications equipment lessees or service providers), licensees and concessionaires and other services to guests at the Property, and the proceeds from business interruption insurance, but excluding the following: (i) any excise, sales or use taxes or similar government charges collected directly from patrons or guests, or as a part of the sales price of any goods, services or displays, such as gross receipts, admission, cabaret or similar or equivalent taxes; (ii) receipts from condemnation awards or sales in lieu of or under threat of condemnation; (iii) proceeds of insurance (other than business interruption insurance); (iv) other allowances and deductions as provided by the Uniform System in determining the sum contemplated by this definition, by whatever name, it may be called; (v) proceeds of sales, whether dispositions of capital assets, FF&E or Equipment (other than sales of Inventory in the ordinary course of business); (vi) gross receipts received by tenants, lessees (other than the Operating Lessee), licensees or concessionaires of the Property; (vii) consideration received at the Property for hotel accommodations, goods and services to be provided at other hotels although arranged by, for or on behalf of, and paid over to, Manager; (viii) tips, service charges and gratuities collected for the benefit of employees; (ix) proceeds of any financing; (x) working capital provided by the Borrower, Subsidiary Guarantor or Operating Lessee; (xii) amounts collected from guests or patrons of the Property on behalf of Property tenants and other third parties; (xii) the value of any goods or services in excess of actual amounts paid (in cash or services) provided by the Manager on a complimentary or discounted basis; and (xiii) other income or proceeds resulting other than from the use or occupancy of the Property, or any part thereof, or other than from the sale of goods, services or other items sold on or provided from the Property in the ordinary course of business. Gross Operating Revenues shall be reduced by credits or refunds to guests at the Property. “Guaranteed Obligations” means, collectively, (a) the Obligations and (b) all existing or future payment and other obligations owing by any Loan Party under any Specified Derivatives Contract (other than any Excluded Swap Obligation). “Guarantors” means the Parent Guarantor and Subsidiary Guarantors. “Guarantor Release” has the meaning given that term in Section 4.2(b). “Guaranty”, “Guaranteed” or to “Guarantee” as applied to any obligation means and includes: (a) a guaranty (other than by endorsement of negotiable instruments for collection in the ordinary course of business), directly or indirectly, in any manner, of any part or all of such obligation, or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting a guaranty, the practical effect of which is to assure the payment or performance (or payment of damages in the event of nonperformance) of any part or all of such obligation whether by: (i) the purchase of securities or obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property or the purchase or sale of services primarily for the purpose of enabling the obligor with respect to such obligation to make any payment or performance (or payment of damages in the event of nonperformance) of or on account of any part or all of such obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to or in any other manner investing in the obligor with respect to such obligation, (iv) repayment of amounts drawn down by beneficiaries of letters of credit, or (v) the supplying of funds to or investing in a Person on account of all or any part of such Person’s obligation under a Guaranty of any obligation or indemnifying or holding harmless, in any way, such Person against any part or all of such obligation. As the context requires, “Guaranty” shall also mean the Parent Guaranty and the Subsidiary Guaranty (or a joinder thereto). “Hazardous Materials” means all or any of the following: (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity, or “EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (c) any explosives or any radioactive materials; (d) asbestos in any form; and (e) toxic mold. “Hotel Property” means a Property on which there is located an operating hotel. “Implied Debt Service” means (a) a given principal balance of Unsecured Indebtedness and Secured Recourse Indebtedness multiplied by (b) the greatest of (i) 10% per annum, (ii) the highest per annum interest rate then applicable to any of the outstanding principal balance of the Loans and (iii) a mortgage debt constant for a loan calculated using a per annum interest rate equal to the yield on a 10 year United States Treasury Note at such time as determined by the Administrative Agent plus 3.50% and amortizing in full in a 25-year period. “Indebtedness” means, with respect to a Person, at the time of computation thereof, all of the following (without duplication): (a)    all obligations of such Person in respect of money borrowed or for the deferred purchase price of property or services (other than trade debt incurred in the ordinary course of business and not more than sixty (60) days past due unless being contested in good faith and equipment leases entered into the ordinary course of business); (b)    all obligations of such Person, whether or not for money borrowed as full or partial payment for property or for services rendered; (c)    Capitalized Lease Obligations of such Person; (d)    all reimbursement obligations (contingent or otherwise) of such Person under or in respect of 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 to purchase, redeem, retire, defease or otherwise make any payment (excluding any such obligation to the extent the obligation can be satisfied by the issuance of Equity Interests (other than Mandatorily Redeemable Stock)) in respect of any Mandatorily Redeemable Stock issued by such Person or any other Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (g)    all obligations of such Person in respect of any purchase obligation, extent the obligation can be satisfied by the issuance of Equity Interests (other than Mandatorily Redeemable Stock)); provided, however, that purchase obligations pursuant to this clause (g) shall be included only to the extent that the amount of such Person’s liability for the purchase price is not limited to the amount of any associated deposit given by such Person; (h)    net obligations under any Derivatives Contract (which shall be deemed to have an amount equal to the Derivatives Termination Value thereof at such time but in no event shall be less than zero); (i)    all Indebtedness of other Persons which such Person has guaranteed payment or is otherwise recourse to such Person for payment (except for guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar customary exceptions to non-recourse liability and except for guaranties of franchise agreements and/or management agreements unless and to the extent that such guarantor has admitted liability or a final, non-appealable judgment is entered against such guarantor); (j)    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 (k)    such Person’s Ownership Share of the Indebtedness of any Unconsolidated Affiliate of such Person. Indebtedness of any Person shall include Indebtedness of any partnership or joint venture in which such Person is a general partner or joint venturer to the extent of such Person’s Ownership Share of such partnership or joint venture (except if such Indebtedness, or portion thereof, is recourse to such Person (other than with respect to customary exceptions to non-recourse liability described in clause (i) above), in which case the greater of such Person’s Ownership Share of such Indebtedness or the amount of the recourse portion of the Indebtedness, shall be included as Indebtedness of such Person). All Loans under this Agreement shall constitute Indebtedness of the Borrower. Borrower or any other Loan Party under any Loan Document and (b) to the extent not otherwise described in the immediately preceding clause (a), Other Taxes. “Initial Borrowing Base Properties” means the ten (10) Borrowing Base Properties identified in Schedule II hereto. “Initial Subsidiary Guarantors” means CHSP Mission Bay LLC and the Subsidiary Guarantors that are owners of the ten (10) Initial Borrowing Base Properties “Intellectual Property” has the meaning given that term in Section 7.1(t). “Interest Expense” means, with respect to a Person and for any period, without duplication, (a) all paid, accrued or capitalized interest expense (including, without limitation, capitalized interest expense (other than capitalized interest funded from a construction loan interest reserve account held by another lender and not included in the calculation of cash for balance sheet reporting purposes) and interest expense attributable to Capitalized Lease Obligations) of such Person and in any event shall include all letter of credit fees and all interest expense with respect to any Indebtedness in respect of which such Person is wholly or partially liable whether pursuant to any repayment, interest carry, performance guarantee or otherwise, plus (b) to the extent not already included in the foregoing clause (a), such Person’s applicable Ownership Share of all paid, accrued or capitalized interest expense for such period of Unconsolidated Affiliates of such Person. “Interest Period” means, with respect to each LIBOR Loan, each period commencing on the date such LIBOR Loan is made, or in the case of the Continuation of a LIBOR Loan the last day of the preceding Interest Period for such Loan, and ending on the numerically corresponding day in the first, third or sixth calendar month thereafter, as the Borrower may select in a Notice of Borrowing, Notice of Continuation or Notice of Conversion, as the case may be, except that each Interest Period that commences on the last Business Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month. Notwithstanding the foregoing: (i) if any Interest Period would otherwise end after the Maturity Date, such Interest Period shall end on the Maturity Date; and (ii) each Interest Period that would otherwise end on a day which is not a Business Day shall end on the immediately following Business Day (or, if such immediately following Business Day falls in the next calendar month, on the immediately preceding Business Day). “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended. “Inventory” shall have the meaning ascribed to such term in the Uniform Commercial Code, and including within the term items which would be entered on a balance sheet under the line items for “Inventories” or “China, glassware, silver, linen and uniforms” under the Uniform Systems of Accounts. “Investment” means, with respect to any Person, any acquisition or investment (whether or not of a controlling interest) by such Person, whether by means of any of the following: (a) the purchase or other acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit to, capital contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any Indebtedness of, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other another Person that constitute the business or a division or operating unit of another Person. Any commitment to make an Investment in any other Person, as well as any option of another Person to require an Investment in such Person, shall constitute an Investment. Except as expressly provided otherwise, for purposes of determining compliance with any covenant contained in a Loan Document, the amount of any Investment shall be the amount actually invested, Investment. “Lender” means each financial institution from time to time party hereto as a “Lender,” together with its respective successors and permitted assigns. With respect to matters requiring the consent or approval of all Lenders, at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and, for voting purposes only, “all Lenders” shall be deemed to mean “all Lenders other than Defaulting Lenders.” For the avoidance of doubt, the term “Lenders” excludes any Departing Lenders. “Lender Parties” means, collectively, the Administrative Agent, the Lenders, the Specified Derivatives Providers, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 11.5, any other holder from time to time of any of any Obligations and, in each case, their respective successors and permitted assigns. “Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender specified in such Lender’s Administrative Questionnaire or in the applicable Assignment and Assumption Agreement, or such other office of such Lender as such Lender may notify the Administrative Agent in writing from time to time. “Leverage Ratio” means the ratio (stated as a percentage) of (a) Indebtedness of the Parent Guarantor and its Subsidiaries on a consolidated basis to (b) Total Asset Value. “LIBOR” means, with respect to any LIBOR Loan for any Interest Period, the rate of interest obtained by dividing (i) the rate of interest per annum determined on the basis of the rate as set by the ICE Benchmark Administration (“ICE”) (or the successor thereto if ICE is no longer making such rate available) for deposits in Dollars for a period equal to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period by (ii) a percentage equal to 1 minus the Eurodollar Reserve Percentage; provided, that if such determined rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. If, for any reason, the rate referred to in the preceding clause (i) does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page), then the rate to be used for such clause (i) shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two Business Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period; provided that if as so determined LIBOR shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Any change in the maximum rate of reserves described in the preceding clause (ii) shall result in a change in LIBOR on the date on which such change in such maximum rate becomes effective. “LIBOR Loan” means a Loan bearing interest at a rate based on LIBOR. “LIBOR Market Index Rate” means, for any day, LIBOR as of that day that would be applicable for a LIBOR Loan having a one-month Interest Period determined at approximately 10:00 a.m. Central time for such day (rather than 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period as otherwise provided in the definition of “LIBOR”), or if such day is not a Business Day, the immediately preceding Business Day. The LIBOR Market Index Rate shall be determined on a daily basis. “Licenses” means all certifications, permits, licenses and approvals, including certificates of completion, certificates of occupancy, and food and beverage and liquor licenses, required for the legal use, occupancy and operation of a Borrowing Base Property as used at the time at which it is added to the Borrowing Base Pool and from time to time thereafter. “Lien” as applied to the property of any Person means: (a) any security interest, encumbrance, mortgage, deed to secure debt, deed of trust, assignment of leases or rents, pledge, lien, hypothecation, assignment, charge or lease constituting a Capitalized Lease Obligation, conditional sale or other title retention agreement, or other security title or encumbrance of any kind in respect of any property of such Person, or upon the income, rents or profits therefrom; (b) any arrangement, express or implied, under which any property of such Person is transferred, sequestered or otherwise identified for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to the payment of the general, unsecured creditors of such Person; (c) the filing of any financing statement under the UCC or its equivalent in any jurisdiction (other than a financing statement filed by a “true” lessor pursuant to Section 9408 (or a successor section) of the UCC); and (d) any agreement by such Person to grant, give or otherwise convey any of the foregoing. “Loan” means a loan made by a Lender to the Borrower pursuant to Section 2.1. “Loan Document” means this Agreement, each Note, the Parent Guaranty, the Subsidiary Guaranty and each other document or instrument now or hereafter executed and delivered by a Loan Party in connection with, pursuant to or relating to this Agreement (other than any Specified Derivatives Contract or the Fee Letter). “Loan Party” means each of the Borrower, the Parent Guarantor, the Initial Subsidiary Guarantors and each other Person who guarantees all or a portion of the Obligations and/or who pledges any collateral to secure all or a portion of the Obligations. “Major Hotel Operator” means any of Hilton Worldwide Holdings, Inc., Hyatt Hotels Corporation, Intercontinental Hotel Group plc and Marriott International, Inc., and shall include their respective subsidiaries. “Major Renovations” means, with respect to a Hotel Property, Renovations (including all Renovations that are part of an overall plan or that are similar or related to other Renovations, even though not performed at the same time) that (a) have resulted in, or are reasonably expected to result in, more than twenty-five percent (25%) of the rooms in such Hotel Property not being available for occupancy for a period of more than sixty (60) days, (b) have a projected cost that exceeds thirty percent (30%) of the Book Value of such Hotel Property (as determined prior to the commencement of such Renovations) or (c) have resulted in, or are reasonably expected to result in, a reduction of Net Operating Income of such Hotel Property of thirty percent (30%) or more during any period of twelve (12) consecutive months (as compared to the period of twelve (12) consecutive months immediately prior to the commencement of such Renovations). “Major Tenant Lease” means a Tenant Lease that demises more than 5,000 rentable square feet of a Borrowing Base Property. “Management Agreement” means an agreement entered into by any Subsidiary Guarantor or Operating Lessee pursuant to which it engages a Manager to manage and operate a Hotel Property, as each said agreement may be amended, supplemented, restated, replaced or otherwise modified from time to time. “Manager” means the management company that manages and operates a Hotel Property pursuant to the Management Agreement for such Hotel Property. “Mandatorily Redeemable Stock” means, with respect to any Person, any Equity Interest of such Person which by the terms of such Equity Interest (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or other equivalent common Equity Interests at the option of the issuer of such Equity Interest), (b) is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in whole or part (other than an Equity Interest which is redeemable solely in exchange for common stock or other equivalent common Equity Interests), in each case on or prior to the date on which all Loans are scheduled to be due and payable in full. “Material Adverse Effect” means a materially adverse effect on (a) the business, assets, liabilities, condition (financial or otherwise), results of operations or business prospects of the Loan Parties taken as a whole, (b) the ability of the Borrower or any other Loan Party to perform its material obligations under any Loan Document to which it is a party, (c) the validity or enforceability of any of the Loan Documents or (d) the rights and remedies of the Lenders and the Administrative Agent under any of the Loan Documents. “Material Contract” means (a) each Management Agreement with respect to a Borrowing Base Property, (b) each Franchise Agreement, if any, with respect to a Borrowing Base Property, (c) the Operating Lease for a Borrowing Base Property, (d) any Major Tenant Lease of a Borrowing Base Property, (e) any material agreement relating to parking for a Borrowing Base Property, (f) any ground lease with respect to a Borrowing Base Property and (g) any other contract or other arrangement (other than Loan Documents), whether written or oral, to which the Borrower or any other Loan Party is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could “Material Plan” means at any time a Plan or Plans having aggregate Unfunded Liabilities in excess of $5,000,000. “Material Subsidiary” means any Subsidiary (other than the Borrower) of the Parent Guarantor (a) that owns in fee simple, or leases pursuant to an Approved Ground Lease, a Borrowing Base Property, (b) to which more than 1.0% of Total Asset Value (excluding cash and cash equivalents) is attributable on an individual basis, or (c) which is a Designated Subsidiary. “Maturity Date” means the Original Maturity Date, as it may be extended to the Extended Maturity Date pursuant to Section 2.15. “Mortgage” means a mortgage, deed of trust, deed to secure debt or similar security instrument made or to be made by a Person owning an interest in real estate granting a Lien on such interest in real estate as security for the payment of Indebtedness. “MSA” has the meaning set forth in the definition of “Top 50 Market”. “Multiemployer Plan” means at any time a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such five year period. “Negative Pledge” means, with respect to a given asset, any provision of a document, instrument or agreement (other than any Loan Document) which prohibits or purports to prohibit the creation or assumption of any Lien on such asset as security for Indebtedness of the Person owning such asset or any other Person; provided, however, that an agreement that conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit a Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge. “Net Operating Income” means, for any Property and for a given period, the amount by which the Gross Operating Revenues for such Property exceed the Operating Expenses for such Property. “Net Proceeds” means with respect to an Equity Issuance by a Person, the aggregate amount of all cash and the Fair Market Value of all other property received by such Person in respect of such Equity Issuance net of investment banking fees, legal fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred by such Person in connection with such Equity Issuance. “New Property” means each Hotel Property acquired by the Parent Guarantor or any Subsidiary or Unconsolidated Affiliate from the date of acquisition until the Seasoned Date in respect thereof, provided, however, that, upon the Seasoned Date for any New Property, such New Property shall be converted to a Seasoned Property and shall cease to be a New Property. “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time. “Nonrecourse Indebtedness” means, with respect to a Person, Indebtedness for borrowed money in respect of which recourse for payment (except for customary exceptions to nonrecourse liability) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness. “Note” means a promissory note of the Borrower substantially in the form of Exhibit C, payable to the order of a Lender in a principal amount equal to the amount of such Lender’s Commitment. “Notice of Borrowing” means a notice substantially in the form of Exhibit D (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.2 evidencing the Borrower’s request for a borrowing of Loans. “Notice of Continuation” means a notice substantially in the form of Exhibit E (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.11 evidencing the Borrower’s request for the Continuation of a LIBOR Loan. “Notice of Conversion” means a notice substantially in the form of Exhibit F (or Agent pursuant to Section 2.12 evidencing the Borrower’s request for the Conversion of a Loan from one Type to another Type. “Notice of Responsible Officers” means a certificate of incumbency or notice from the Borrower to the Administrative Agent, in a form satisfactory to the Administrative Agent, identifying the officers of the Borrower that have authority to deliver Notices of Borrowing, Notices of Conversion, Notices of Continuation and other notices or requests specified in this Agreement. “Obligations” means, individually and collectively: (a) the aggregate principal balance of, and all accrued and unpaid interest on, all Loans; and (b) all other indebtedness, liabilities, obligations, covenants and duties of the Borrower or any of the other Loan Parties owing to the Administrative Agent or any Lender of every kind, nature and description, under or in respect of this Agreement or any of the other Loan Documents, including, without limitation, the Fees and indemnification obligations, whether direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any promissory note, and including interest and fees that accrue following the commencement of a proceeding by or against any Loan Party under a Debtor Relief Law. For the avoidance of doubt, “Obligations” shall not include any indebtedness, liabilities, obligations, covenants or duties in respect of Specified Derivatives Contracts. “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control. “Off-Balance Sheet Obligations” means liabilities and obligations of the Parent Guarantor, any Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act) which the Parent Guarantor would be required to disclose in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” Section of the Parent Guarantor’s report on Form 10 Q or Form 10 K (or their equivalents) which the Parent Guarantor is required to file with the Securities and Exchange Commission (or any Governmental Authority substituted therefor). “Operating Expenses” means, for any period of time for any Property, all costs and expenses of maintaining, conducting and supervising the operation of the Property which are properly attributable to the period under consideration under the Borrower’s system of accounting, including without limitation: (i)    the cost of all food and beverages sold or consumed and of all Inventory; (ii)    salaries and wages of personnel employed at the Property, including costs of payroll taxes and employee benefits and all other expenses not otherwise specifically referred to in this paragraph which are referred to as “Administrative and General Expenses” in the Uniform System; (iii)    the cost of all other goods and services obtained by Manager in connection with its operation of the Property including, without limitation, heat and utilities, office supplies and all services performed by third parties, including leasing expenses in connection with telephone and data processing equipment; (iv)    the cost of repairs to and maintenance of the Property (excluding capital expenditures); (v)    insurance premiums for all insurance maintained with respect to the Property, including without limitation, property damage insurance, public liability insurance, and such business interruption or other insurance as may be provided for protection against claim, liabilities and losses arising from the use and operation of the Property and losses incurred with respect to deductibles applicable to the foregoing types of insurance; (vi)    workers’ compensation insurance or insurance required by similar employee benefits acts; (vii)    all personal property taxes, real estate taxes, assessments, and any other ad valorem taxes imposed on or levied in connection with the Property (less refunds, offsets or credits thereof, and interest thereon, if any, received during the period in question) and all other taxes, assessments and other charges (other than federal, state or local income taxes and franchise taxes or the equivalent) payable by or assessed against Manager, Subsidiary Guarantor or Operating Lessee with respect to the operation of the Property and water and sewer charges; (viii)    all sums deposited into any maintenance or capital expenditure reserve, including the amount of the applicable FF&E Reserve; (ix)    legal fees related to the operation of the Property; (x)    the costs and expenses of technical consultants and specialized operational experts for specialized services in connection with non-recurring work on operational, functional, decorating, design or construction problems and activities, including the fees (if any) of Manager in connection therewith, such as ADA studies, life safety reviews, and energy efficiency studies; (xi)    all expenses for marketing the Property, including all expenses of advertising, sales promotion and public relations activities; (xii)    utility taxes and other taxes (as those terms are defined in the Uniform System) and municipal, county and state license and permit fees; (xiii)    all fees (including base and incentive fees), assessments, royalties and charges payable under the Management Agreement and Franchise Agreement (if any); (xiv)    reasonable reserves for uncollectible accounts receivable; (xv)    credit card fees, travel agent commissions and other third-party reservation fees and charges; (xvi)    all parking charges and other expenses associated with revenues received by the Manager related to parking operations, including valet services; (xvii)    common expenses charges, common area maintenance charges and similar costs and expenses; (xviii)    rent payments under any ground lease; and (xix)    any other cost or charge classified as an Operating Expense or an Administrative and General Expense under the Uniform System in the Management Agreement unless specifically excluded under the provisions of this Agreement. Operating Expenses shall not include (a) depreciation and amortization except as otherwise provided in this Agreement; (b) the cost of any item specified in the Management Agreement to be provided at Manager’s sole expense; (c) debt service; (d) capital repairs and other expenditures which are normally treated as capital expenditures under the Uniform System or GAAP; or (e) other recurring or non-recurring ownership costs such as partnership or limited liability company administration and costs of changes to business and liquor licenses. “Operating Lease” means, with respect to any Property, the lease thereof between the Subsidiary of the Borrower that is the owner thereof and the Subsidiary of the Borrower that is the Operating Lessee. “Operating Lessee” means any Subsidiary of the Borrower that is the lessee under an Operating Lease. “Operating Property Value” means, at any date of determination, the following: (a)    for each New Property (until the Seasoned Date), the purchase price thereof;     (b)    for each Seasoned Property, the Adjusted NOI for such Property for the period of twelve (12) months ended on such date of determination divided by the Applicable Capitalization Rate; and (c)    for each Renovated Borrowing Base Property, for so long as it shall continue to be a Renovated Borrowing Base Property, the sum of (i) the purchase price paid by the Borrower (or any applicable Subsidiary) for such Property less any amounts paid to the Borrower (or such Subsidiary) as a purchase price adjustment, held in escrow, retained as a contingency reserve, or in connection with other similar arrangements plus (ii) 50% of the budgeted renovation costs of such Property (as approved by Administrative Agent). “Option to Extend” means the Borrower’s option to extend the Maturity Date as provided in Section 2.15. “Original Maturity Date” means March 4, 2019. “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment. “Ownership Share” means, with respect to any Subsidiary of a Person (other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of (a) such Person’s relative nominal direct and indirect ownership interest (expressed as a percentage) in such Subsidiary or Unconsolidated Affiliate or (b) subject to compliance with Section 9.4(s), such Person’s relative direct and indirect economic interest (calculated as a percentage) in such Subsidiary or Unconsolidated Affiliate determined in accordance with the applicable provisions of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture agreement or other applicable organizational document of such Subsidiary or Unconsolidated Affiliate. “Parent Guarantor” means Chesapeake Lodging Trust, a Maryland real estate investment trust. “Parent Guaranty” means that certain Amended and Restated Repayment Guaranty dated as of the Agreement Date, executed by the Parent Guarantor in favor of the Administrative Agent for its benefit and the benefit of the Lenders, as the same may hereafter be supplemented, amended or otherwise modified from time to time. “Participant” has the meaning given that term in Section 13.6(d). “Participant Register” has the meaning given that term in Section 13.6(d). “Patriot Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)). “PBGC” means the Pension Benefit Guaranty Corporation and any successor agency. “Permitted Liens” means, with respect to any asset or property of a Person, (a) Liens securing taxes, assessments and other charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of the provisions of ERISA or pursuant to any Environmental Laws) which are not at the time required to be paid or discharged under Section 8.6; (b) Liens consisting of deposits or pledges made, in the ordinary course of business, in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance or similar Applicable Laws; (c) Liens consisting of encumbrances in the nature of zoning restrictions, easements, and rights or restrictions of record on the use of real property, which do not materially detract from the value of such Property or impair the intended use thereof in the business of such Person; (d) Liens imposed by laws, such as mechanics’ liens and other similar liens, arising in the ordinary course of business which secure payment of obligations not more than sixty (60) days past due; (e) the rights of tenants under leases or subleases not interfering with the ordinary conduct of business of such Person; (f) Liens in favor of the Administrative Agent for its benefit and the benefit of the Lenders; (g) in the case of any Property that is not a Borrowing Base Property, Liens against such Property securing Indebtedness not otherwise prohibited hereunder; (h) judgment Liens not in excess of $1,000,000 in the aggregate for all Properties or $250,000 for any one Borrowing Base Property (exclusive of (x) any amounts that are duly bonded to the satisfaction of Administrative Agent in its reasonable discretion or (y) any amount covered by insurance to the satisfaction of Administrative Agent in its reasonable discretion); (i) deposits or pledges to secure bids, tenders, contracts (other than contracts for payment of money), leases, regulatory or statutory obligations, surety and appeal bonds and other obligations of like nature arising in the ordinary course of business; (j) Liens on leased personal property to secure the lease obligations associated with such property; and (k) any other matters from time to time that are not material and that are approved in writing by Administrative Agent (but specifically excluding, in the case of any Borrowing Base Property, Liens securing monetary obligations). “Person” means any natural person, corporation, limited partnership, general partnership, joint stock company, limited liability company, limited liability partnership, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, or any other nongovernmental entity, or any Governmental Authority. “Personal Property” shall mean the Accounts, Chattel Paper, Contracts, Equipment, General Intangibles, Inventory, vehicles and cash on hand at or related to a Borrowing Base Property. “PIP” means a property improvement plan for a Property prepared by a franchisor or manager of such Property. “Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (i) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding five years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group. “Post-Default Rate” means, in respect of any principal of any Loan that is not paid when due, the otherwise applicable rate plus the Applicable Margin applicable to such Loan plus an additional four percent (4%) per annum and with respect to any other Obligation that is not paid when due (whether at stated maturity, by acceleration, by optional or mandatory prepayment or otherwise) a rate per annum equal to Base Rate as in effect from time to time plus the Applicable Margin for Base Rate Loans, plus four percent (4%). “Preferred Dividends” means, for any period and without duplication, all Restricted Payments paid during such period on Preferred Stock issued by the Parent Guarantor or a Subsidiary. Preferred Dividends shall not include dividends or distributions (a) paid or payable solely in Equity Interests (other than Mandatorily Redeemable Stock) payable to holders of such class of Equity Interests, (b) paid or payable to the Parent Guarantor or a Subsidiary, or (c) constituting or resulting in the redemption of Preferred Stock, other than scheduled redemptions not constituting balloon, bullet or similar redemptions in full. “Preferred Stock” means, with respect to any Person, shares of capital stock of, or other Equity Interests in, such Person which are entitled to preference or priority over any other capital stock of, or other Equity Interest in, such Person in respect of the payment of dividends or distribution of assets upon liquidation or both. “Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the Lender then acting as the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Lender acting as Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks. “Principal Office” means the Administrative Agent’s office at Minneapolis Loan Center, 600 South 4th St., 9th Floor, Minneapolis, Minnesota 55415, or any other subsequent office that the Administrative Agent shall have specified as the Principal Office by written notice to the Borrower and the Lenders. “Pro Rata Share” means, as to each Lender, the ratio, expressed as a percentage of (a) the amount of such Lender’s Commitment to (b) the sum of the aggregate amount of the Commitments of all Lenders; provided, however, that if at the time of determination the Commitments have terminated or been reduced to zero, the “Pro Rata Share” of each Lender shall be the ratio, expressed as a percentage of (A) the sum of the unpaid principal amount of all outstanding Loans owing to such Lender as of such date to (B) the sum of the aggregate unpaid principal amount of all outstanding Loans of all Lenders as of such date. “Proceedings” has the meaning given that term in Section 8.16. “Property” means a parcel of real property and the improvements thereon owned or ground leased by the Parent Guarantor or any Subsidiary (or, if applicable, Unconsolidated Affiliate). For purposes of Section 4.1, the term “Property” may include a property to be acquired, but not yet acquired, by a Subsidiary of the Borrower. “Recipient” means (a) the Administrative Agent, and (b) any Lender, as applicable. “Register” has the meaning given that term in Section 13.6(c). “Regulatory Change” means, with respect to any Lender, any change effective after the Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks, including such Lender, of or under any Applicable Law (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any Governmental Authority or monetary authority charged with the interpretation or administration thereof or compliance by any Lender with any request or directive regarding capital adequacy or liquidity. Notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street directives thereunder or issued in connection therewith and (b) all requests, 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 “Regulatory Change”, regardless of the date enacted, adopted, implemented or issued. “REIT” means a Person qualifying for treatment as a “real estate investment trust” under the Internal Revenue Code. and the partners, shareholders, directors, officers, employees, agents, counsel, other advisors and representatives of such Person and of such Person’s Affiliates. “Renovated Borrowing Base Properties” means, each of the W Chicago-Lakeshore in Chicago and the Le Meridien New Orleans (due to extensive renovations at such hotels), until the earlier of, as to each Property: (i) the date that the Property Value to be determined as a Seasoned Property, and (ii) June 30, 2016. “Renovations” means any renovations, remodeling or other capital improvements at a Hotel Property (whether performed pursuant to a PIP or otherwise), but not routine maintenance or repairs. “Requisite Lenders” means, as of any date, Lenders having at least 50.1% of the aggregate amount of the Commitments, or, if the Commitments have been terminated or reduced to zero, Lenders holding at least 50.1% of the aggregate principal amount of the outstanding Loans; provided that (i) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and the Pro Rata Shares shall be redetermined, for voting purposes only, to exclude the Pro Rata Shares of such Defaulting Lenders, and (ii) at all times when two or more Lenders are party to this Agreement, the term “Requisite Lenders” shall in no event mean less than two Lenders. “Restricted Payment” means: (a) any dividend or other distribution, direct or indirect, on account of any shares of any Equity Interest of the Parent Guarantor or any of its Subsidiaries now or hereafter outstanding, except a dividend payable solely in additional Equity Interests to the holders of that class of Equity Interests; (b) any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interest of the Parent Guarantor or any of its Subsidiaries now or hereafter outstanding; (c) any prepayment of principal of or premium, if any, on, or redemption, conversion, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, any Subordinated Debt; and (d) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of the Parent Guarantor or any of its Subsidiaries now or hereafter outstanding. “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc. “Sanctioned Country” means, at any time, a country, territory or region which is, or whose government is, the subject or target of any Sanctions. “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by the United Nations Security Council, Her Majesty’s Treasury, the European Union or any other Governmental Authority, (b) any Person located, operating, organized or resident in a Sanctioned Country, (c) an agency of the government of a Sanctioned Country or (d) any Person owned or Controlled by any Person or agency described in any of the preceding clauses (a) through (c). “Sanctions” means any sanctions or trade embargoes imposed, administered or enforced by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by the United Nations Security Council, Her Majesty’s Treasury, the European Union or any other Governmental Authority. “Seasoned Date” means the first day on which an acquired Hotel Property has been owned for four (4) full fiscal quarters following the date of acquisition by Parent Guarantor or one of its Subsidiaries or Unconsolidated Affiliates (or such earlier date as Borrower may elect by notice to Administrative Agent). “Seasoned Property” means (a) each Hotel Property (other than a New Property or a Renovated Borrowing Base Property) owned by Parent Guarantor or any of its Subsidiaries or Unconsolidated Affiliates, (b) upon the occurrence of the Seasoned Date of any New Property, such Hotel Property, and (c) in accordance with the definition thereof, each Renovated Borrowing Base Property. “Secured Indebtedness” means, with respect to a Person as of any given date, the aggregate principal amount of all Indebtedness of such Person outstanding on such date that is secured in any manner by any lien on any Property or (to the extent hereinafter provided) any Equity Interests and shall include (without duplication) such Person’s Ownership Share of the Secured Indebtedness of its Unconsolidated Affiliates. Notwithstanding the foregoing, Indebtedness that is secured by a pledge of Equity Interests and not by Property owned by the issuer of such Equity Interests shall constitute Secured Indebtedness only if such Property also secures Indebtedness of such issuer. “Secured Leverage Ratio” means the ratio (stated as a percentage) of (a) Secured Indebtedness of the Parent Guarantor and its Subsidiaries on a consolidated basis to (b) Total Asset Value. “Secured Recourse Indebtedness” means, with respect to a Person as of any given date, the Secured Indebtedness of such Person (other than Nonrecourse Indebtedness) and shall include (without limitation) such Person’s Ownership Share of the Secured Recourse Indebtedness of such Person’s Unconsolidated Affiliates. “Securities Act” means the Securities Act of 1933, as amended from time to time, together with all rules and regulations issued thereunder. “Solvent” means, when used with respect to any Person, that (a) the fair value and the fair salable value of its assets (excluding any Indebtedness due from any affiliate of such Person) are each in excess of the fair valuation of its total liabilities (including all contingent liabilities); (b) such Person is able to pay its debts or other obligations in the ordinary course as they mature; and (c) such Person has capital not unreasonably small to carry on its business and all business in which it proposes to be engaged. “Specified Derivatives Contract” means any Derivatives 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, between or among any Loan Party and any Specified Derivatives Provider, and which was not prohibited by any of the Loan Documents when made or entered into. “Specified Derivatives Provider” means any Person that (a) at the time it enters into a Specified Derivatives Contract with a Loan Party, is a Lender or an Affiliate of a Lender or (b) at the time it (or its Affiliate) becomes a Lender (including on the Effective Date), is a party to a Specified Derivatives Contract with a Loan Party, in each case in its capacity as a party to such Specified Derivatives Contract. “Specified Loan Party” means each Loan Party other than the Parent Guarantor. “Subordinated Debt” means Indebtedness for money borrowed of any of the Loan Parties that is subordinated in right of payment and otherwise to the Loans, the other Obligations and the obligations under Specified Derivatives Contracts, if any, in a manner satisfactory to the Administrative Agent in its sole and absolute discretion. “Subsidiary” means, for any Person, any corporation, partnership, limited liability company, trust or other entity of which at least a majority of the Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors, trustees or other individuals performing similar functions of such corporation, partnership, limited liability company, trust or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP. Unless otherwise specified, all references herein to a “Subsidiary” or “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent Guarantor. “Subsidiary Guarantor” means each Subsidiary of Borrower that is a Material Subsidiary (other than Excluded Subsidiaries). “Subsidiary Guaranty” means that certain Subsidiary Guaranty dated as of the Agreement Date and executed by the Initial Subsidiary Guarantors in favor of the “Substantial Amount” means, at the time of determination thereof, an amount in excess of ten percent (10%) of total consolidated assets (exclusive of depreciation) at such time of the Parent Guarantor and its Subsidiaries determined on a consolidated basis. “Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act. “Syndication Agent” means JPMorgan Chase Bank, N.A. “Tangible Net Worth” means, as of a given date, shareholders’ equity of the Parent Guarantor and its Subsidiaries determined on a consolidated basis plus accumulated depreciation and amortization, minus (to the extent included when determining shareholders’ equity of the Parent Guarantor and its Subsidiaries): (a) the amount of any write-up in the Book Value of any assets reflected in any balance sheet resulting from revaluation thereof or any write up in excess of the cost of such assets acquired, and (b) the aggregate of all amounts appearing as assets on the balance sheet of the Parent Guarantor and its Subsidiaries, on a consolidated basis, for franchises, licenses, permits, patents, patent applications, copyrights, trademarks, service marks, trade names, goodwill, treasury stock, experimental or organizational expenses and other like assets which would be classified as intangible assets under GAAP (subject to Section 1.2(a)), all determined on a consolidated basis. withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Tenant Lease” means any lease, sublease or other similar occupancy agreement for any portion of a Borrowing Base Property. “Term Loan Agreement” means the Term Loan Agreement, dated April 21, 2017, among agent, as amended, restated, supplemented or otherwise modified from time to time. “Third Amended Credit Agreement” has the meaning given that term in the Recitals to this Agreement. “Top 50 Market” means the fifty (50) largest Metropolitan Statistical Areas in the United States (each, an “MSA”) as published from time to time by the United States Office of Management and Budget. “Total Asset Value” means, without duplication, the sum of (a) the following amounts with respect to the following assets owned by Parent Guarantor or any of its Subsidiaries: (i) the Operating Property Value of Hotel Properties; (ii) the amount of all Unrestricted Cash; (iii) the Book Value of all unimproved land and all Indebtedness secured by Mortgages; (iv) the Book Value of all Development/Redevelopment Properties; and (v) the contract purchase price for all purchase assets (to the extent included in Indebtedness); plus (b) the applicable Ownership Share of any Unconsolidated Affiliate of any asset described in clause (a) above. “Type” with respect to any Loan, refers to whether such Loan is a LIBOR Loan or a Base Rate Loan. “UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction. “Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such Person holds an Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person. “Unencumbered Borrowing Base Asset Value” means, as of any date of determination, the Operating Property Value of the Borrowing Base Pool as of such date minus the Excluded Operating Property Value as of such date. “Unencumbered Implied Debt Service Coverage Ratio” means, as of any date of determination, the ratio of (i) Adjusted NOI for Borrowing Base Properties (excluding, (1) with respect to each Borrowing Base Property which has an Adjusted NOI in excess of 35% of the Adjusted NOI of the Borrowing Base Pool, such excess, and (2) the excess of (x) the Adjusted NOI of all Borrowing Base Properties located in a single MSA or Top 50 Market over (y) 35% of the Adjusted NOI of the Borrowing Base Pool) for any period of four consecutive fiscal quarters most recently ending to (ii) Implied Debt Service for all Unsecured Indebtedness and Secured Recourse Indebtedness of the Parent Guarantor and its consolidated Subsidiaries for such period. “Unencumbered Leverage Ratio” means the ratio (stated as a percentage) of (a) the sum of (i) Unsecured Indebtedness plus (ii) Secured Recourse Indebtedness, in each case, of the Parent Guarantor and its Subsidiaries on a consolidated basis to (b) Unencumbered Borrowing Base Asset Value. “Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by which (a) the value of all benefit liabilities under such Plan, determined on a plan termination basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions), all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA. “Uniform System” means the Uniform System of Accounts for the Lodging Industry, Eleventh Revised Edition, 2014, as published by the Educations Institute of the American Hotel & Motel Association, as revised from time to time to the extent such revision has been or is in the process of being generally implemented within such Uniform System of Accounts. “Unrestricted Cash” means, with respect to any Person, cash and Cash Equivalents of such Person that are free and clear of all Liens and not subject to any restrictions (other than with respect to costs of liquidating certain Cash Equivalents prior to maturity) on the use thereof to pay Indebtedness and other obligations of the such Person. “Unsecured Indebtedness” means with respect to a Person as of any given date, the aggregate principal amount of all Indebtedness of such Person outstanding at such date that is not Secured Indebtedness and shall include (without duplication) such Person’s Ownership Share of the Unsecured Indebtedness of any Unconsolidated Affiliate of such Person. “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code. “U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 3.10(g)(ii)(B)(III). “Wells Fargo” means Wells Fargo Bank, National Association, and its successors and assigns. “Withholding Agent” means (a) the Borrower, (b) any other Loan Party and (c) the Administrative Agent, as applicable. “Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the Equity Interests (other than, in the case of a corporation, directors’ qualifying shares) are at the time directly or indirectly owned or controlled by such Person or one or more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person. “Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule. (a)    Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted or determined in accordance with GAAP as in effect on the Agreement Date; provided that, if at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Requisite Lenders shall so request, the light of such change in GAAP (subject to the approval of the Requisite Lenders); provided further 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) the Borrower shall provide to the Administrative Agent and the Lenders such change in GAAP. Notwithstanding the use of GAAP, the calculation of liabilities shall NOT include any fair value adjustments to the carrying value of liabilities to record such liabilities at fair value pursuant to electing the fair value option election under FASB ASC 825-10-25 (formerly known as FAS 159, The Fair Value Option for Financial Assets and Financial Liabilities) or other FASB standards allowing entities to elect fair value option for financial liabilities. Therefore, the amount of liabilities shall be the historical cost basis, which generally is the contractual amount owed. (b)    References in this Agreement to “Sections”, “Articles”, “Exhibits” and “Schedules” are to sections, articles, exhibits and schedules herein and hereto unless otherwise indicated. References in this Agreement to any document, instrument or agreement (i) shall include all exhibits, schedules and other attachments thereto, (ii) shall include all documents, instruments or agreements issued or executed in replacement thereof, to the extent permitted hereby and (iii) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, supplemented, restated or otherwise modified from time to time to the extent not otherwise stated herein or prohibited hereby and in effect at any given time. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter. Except as expressly provided otherwise in any Loan Document, (x) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing 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, extended, restated, replaced or supplemented from time to time, (y) any reference to any Person shall be construed to include such Person’s permitted successors and permitted assigns and (z) a reference to “Subsidiary” means a Subsidiary of the Borrower or a Subsidiary of such Subsidiary and a reference to an “Affiliate” means a reference to an Affiliate of the Borrower. Titles and captions of Articles, Sections, subsections and clauses in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement. Unless otherwise indicated, all references to time are references to Central time daylight or standard, as applicable. Subject to the terms and conditions set forth in this Agreement, including without limitation, Section 2.16 below, each Lender severally and not jointly agrees to make Loans to the Borrower during the period from and including the Effective Date to but excluding the Maturity Date, in an aggregate principal amount at any one time outstanding up to, but not exceeding, such Lender’s Commitment; provided, however Loans shall not be made in excess of amounts that would cause a violation of the limitations set forth in Section 2.16. Each borrowing of Loans hereunder shall be in an aggregate principal amount of $1,000,000 and integral multiples of $100,000 in excess of that amount (except that, subject to Section 2.16, any such borrowing of Loans may be in the aggregate amount of the Commitments of all Lenders minus the sum of the aggregate principal balance of all Loans, which Loans, if less than $1,000,000, must be Base Rate Loans). Within the foregoing limits and subject to the terms and conditions of this Agreement, the Borrower may borrow, repay and, prior to the Maturity Date, reborrow Loans. Not later than 11:00 a.m. Central time at least one (1) Business Day prior to a borrowing of Base Rate Loans and not later than 11:00 a.m. Central time at least three (3) Business Days prior to a borrowing of LIBOR Loans, the Borrower shall deliver to the Administrative Agent a Notice of Borrowing. Each Notice of Borrowing shall specify the aggregate principal amount of the Loans to be borrowed, the date such Loans are to be borrowed (which must be a Business Day), the use of the proceeds of such Loans, the Type of the requested Loans, and if such Loans are to be LIBOR Loans, the initial Interest Period for such Loans. Each Notice of Borrowing shall be irrevocable once given and binding on the Borrower. Notwithstanding the foregoing, the Administrative Agent is authorized to rely upon the telephonic request of any of the Borrower’s Agents. The Borrower’s telephonic notices, requests and acceptances shall be directed to such officers of the Administrative Agent as the Administrative Agent may from time to time designate and shall be followed promptly by the original or a facsimile or electronic mail Notice of Borrowing required pursuant to the first sentence of this Section 2.2. Prior to delivering a Notice of Borrowing, the Borrower may (without specifying whether a Loan will be a Base Rate Loan or a LIBOR Loan) request that the Administrative Agent provide the Borrower with the most recent LIBOR available to the Administrative Agent. The Administrative Agent shall provide such quoted rate to the Borrower on the date of such request or as soon as possible thereafter. Promptly after receipt of a Notice of Borrowing under Section 2.2, the Administrative Agent shall notify each Lender of the proposed borrowing. Each Lender shall deposit an amount equal to the Loan to be made by such Lender to the Borrower with the Administrative Agent at the Principal Office, in immediately available funds not later than 11:00 a.m. Central time on the date such proposed Loans are to be made available to the Borrower. Subject to fulfillment of all applicable conditions set forth herein, the Administrative Agent shall make available to the Borrower in the account specified in the Disbursement Instruction Agreement, not later than 2:00 p.m., Central time, on the date of the requested borrowing of Loans, the proceeds of such amounts received by the Administrative Agent. No Lender shall be responsible for the failure of any other Lender to make a Loan or to perform any other obligation to be made or performed by such other Lender hereunder, and the failure of any Lender to make a Loan or to perform any other obligation to be made or performed by it hereunder shall not relieve the obligation of any other Lender to make any Loan or to perform any other obligation to be made or performed by such other Lender. With respect to Loans to be made after the Effective Date, unless the Administrative Agent shall have been notified by any Lender that such Lender will not make available to the Administrative Agent a Loan to be made by such Lender in connection with any borrowing, the Administrative Agent may assume that such Lender will make the proceeds of such Loan available to the Administrative Agent in accordance with this Section, and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower the amount of such Loan to be provided by such Lender. In such event, if such Lender does not make available to the Administrative Agent the proceeds of such Loan, then such Lender and the Borrower severally agree to pay to the Administrative Agent on demand the amount of such Loan with interest thereon, for each day from and including the date such Loan is made available to the Borrower but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such compensation and (ii) in the case of a payment to be made by the Borrower, the shall pay the amount of such interest to the Administrative Agent for the same or overlapping period, the Administrative Agent shall promptly remit to the such Lender pays to the Administrative Agent the amount of such Loan, the amount so paid shall constitute such Lender’s Loan included in the borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make available the proceeds of a Loan to be made by such Lender. Release of Liens. The parties to this Agreement agree that, upon (i) the execution and delivery by each of the parties hereto of this Agreement and (ii) satisfaction of the conditions set forth in Section 6.1, the terms and provisions of the Third Amended Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to and shall not constitute a novation. All “Loans” made and “Obligations” incurred under the Third Amended Credit Agreement which are outstanding on the Effective Date shall continue as Obligations under (and shall be governed by the terms of) this Agreement and the other Loan Documents. Without limiting the foregoing, upon the effectiveness hereof: (a) all references in the “Loan Documents” (as defined in the Third Amended Credit Agreement) to the “Administrative Agent”, the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents, (b) all obligations constituting “Obligations” with any Lender or any Affiliate of any Lender which are outstanding on the Effective Date shall continue as Obligations under this Agreement and the other Loan Documents, (c) the Administrative Agent shall make such reallocations, sales, assignments or other relevant actions in respect of each Lender’s credit and loan exposure under the Third Amended Credit Agreement as are necessary in order that each such Lender’s outstanding Loans hereunder reflect such Lender’s Commitment Percentages on the Effective Date and (d) each Departing Lender’s “Commitment” under the Third Amended Credit Agreement shall be terminated, each Departing Lender shall have received payment in full of all of the “Obligations” under the Third Amended Credit Agreement (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as defined in the Third Amended Credit Agreement) and each Departing Lender shall not be a Lender hereunder. The Borrower shall pay to the Lenders (including each Departing Lender) amounts payable, if any, to the Lenders under Section 5.4 as a result of the prepayment of any “Loans” under and as defined in the Third Amended Credit Agreement. By their execution of this Agreement each of the Lenders under the Third Amended Credit Agreement hereby authorizes the Administrative Agent to release any Lien granted to or held by the Administrative Agent upon any “Collateral” securing the “Obligations” under the Third Amended Credit Agreement. The Administrative Agent shall, at the Borrower’s expense, promptly execute and deliver all documents and instruments the Borrower shall have delivered to the Administrative Agent in connection with such release; provided, however, that the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty. (a)    Rates. The Borrower promises to pay to the Administrative Agent for the account of each Lender interest on the unpaid principal amount of each Loan made by such Lender for the period from and including the date of the making of such Loan (including any Loans outstanding on the Effective Date) to but excluding the date such Loan shall be paid in full, at the following per annum rates: (i)    during such periods as such Loan is a Base Rate Loan, at the Base Rate (as in effect from time to time), plus the Applicable Margin for Base Rate Loans; and (ii)    during such periods as such Loan is a LIBOR Loan, at LIBOR for such Loan for the Interest Period therefor, plus the Applicable Margin for LIBOR Loans. Notwithstanding the foregoing, while an Event of Default exists, the Borrower shall pay to the Administrative Agent for the account of each Lender interest at the Post-Default Rate on the outstanding principal amount of any Loan made by such Lender and on any other amount payable by the Borrower hereunder or under the Notes held by such Lender to or for the account of such Lender (including without limitation, accrued but unpaid interest to the extent permitted under Applicable Law). (b)    Payment of Interest. All accrued and unpaid interest on the outstanding principal amount of each Loan shall be payable (i) monthly in arrears on the first day of each month, commencing with the first full calendar month occurring after the Effective Date and (ii) on any date on which the principal balance of such Loan is due and payable in full (whether at maturity, due to acceleration or otherwise). Interest payable at the Post-Default Rate shall be payable from time to time on demand. All determinations by the Administrative Agent of an interest rate hereunder shall be conclusive and binding on the Lenders and the Borrower for all purposes, absent manifest error. In the case of interest on Loans outstanding on the Effective Date, interest accrued as of the Effective Date shall be allocated among the Lenders based on their Commitment Percentages under the Third Amended Credit Agreement, and interest accruing from and after the Effective Date shall be allocated among the Lenders based on their Commitment Percentages under this Agreement. There may be no more than seven (7) different Interest Periods outstanding at the same time. The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, the Loans on the Maturity Date. (a)    Optional. Subject to Section 5.4, the Borrower may prepay any Loan at any time without premium or penalty. The Borrower shall give the Administrative Agent at least three (3) Business Days prior written notice of the prepayment of any Loan. Each voluntary prepayment of Loans shall be either (i) in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess thereof or (ii) the entire outstanding principal amount of the Loans (together with all accrued but unpaid interest thereon). (b)    Mandatory. (i)    Overadvance. If at any time the aggregate principal amount of all outstanding Loans exceeds the aggregate amount of the Commitments, the Borrower shall immediately upon demand pay to the Administrative Agent for the account of the Lenders the amount of such excess. (ii)    Application of Mandatory Prepayments. Amounts paid under the preceding subsection (b)(i) shall be applied to pay all amounts of principal outstanding on the Loans pro rata in accordance with Section 3.2. If the Borrower is required to pay any outstanding LIBOR Loans by reason of this Section prior to the end of the applicable Interest Period therefor, the Borrower shall pay all amounts due under Section 5.4. If any payment required under this Agreement is not paid within ten (10) days after it becomes due and payable, the Borrower shall pay a late charge for late payment to compensate the Lenders for the loss of use of funds and for the expenses of handling the delinquent payment, in an amount equal to four percent (4%) of such delinquent payment. Such late charge shall be paid in any event not later than the due date of the next subsequent installment of principal and/or interest. In the event the maturity of the Obligations hereunder occurs or is accelerated pursuant to Section 11.2, this Section shall apply only to payments overdue prior to the time of such acceleration. This Section shall not be deemed to be a waiver of the Lenders’ right to accelerate payment of any of the Obligations as permitted under the terms of this Agreement. So long as no Default or Event of Default exists, the Borrower may on any Business Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan by selecting a new Interest Period for such LIBOR Loan. Each Continuation of a LIBOR Loan shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount, and each new Interest Period selected under this Section shall commence on the last day of the immediately preceding Interest Period. Each selection of a new Interest Period shall be made by the Borrower giving to the Administrative Agent a Notice of Continuation not later than 11:00 a.m. Central time on the third Business Day prior to the date of any such Continuation. Such notice by the Borrower of a Continuation shall be by telecopy, electronic mail or other similar form of communication in the form of a Notice of Continuation, specifying (a) the proposed date of such Continuation, (b) the LIBOR Loan and portion thereof subject to such Continuation and (c) the duration of the selected Interest Period, all of which shall be specified in such manner as is necessary to comply with all limitations on Loans outstanding hereunder. Notwithstanding the foregoing, the Administrative Agent is authorized to rely upon the telephonic request of any of the Borrower’s Agents. The Borrower’s telephonic notices, requests and acceptances shall be directed to such officers of the Administrative Agent as the Administrative Agent may from time to time designate and shall be followed promptly by the original or a facsimile or electronic mail Notice of Continuation required pursuant to the third sentence of this Section 2.11. Each Notice of Continuation shall be irrevocable by and binding on the Borrower once given. Promptly after receipt of a Notice of Continuation, the Administrative Agent shall notify each Lender of the proposed Continuation. If the Borrower shall fail to select in a timely manner a new Interest Period for any LIBOR Loan in accordance with this Section, such LIBOR Loan will automatically, on the last day of the current Interest Period therefor, continue as a LIBOR Loan with an Interest Period of one month; provided, however that if a Default or Event of Default exists, such LIBOR Loan will automatically, on the last day of the current Interest Period therefor, Convert into a Base Rate Loan notwithstanding the first sentence of Section 2.12 or the Borrower’s failure to comply with any of the terms of such Section. Business Day, upon the Borrower’s giving of a Notice of Conversion to the Administrative Agent by telecopy, electronic mail or other similar form of communication, Convert all or a portion of a Loan of one Type into a Loan of another Type. Each Conversion of Base Rate Loans into LIBOR Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount, and upon Conversion of a Base Rate Loan into a LIBOR Loan, the Borrower shall pay accrued interest to the date of Conversion on the principal amount so Converted in accordance with Section 2.6. Any Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and only on, the last day of an Interest Period for such LIBOR Loan. Each such Notice of Conversion shall be given not later than 11:00 a.m. Central time three (3) Business Days prior to the date of any proposed Conversion into Base Rate or LIBOR Loans. Promptly after receipt of a Notice of Conversion, the Administrative Agent shall notify each Lender of the proposed Conversion. Subject to the restrictions specified above, each Notice of Conversion shall be by telecopy, electronic mail or other similar form of communication in the form of a Notice of Conversion specifying (a) the requested date of such Conversion, (b) the Type of Loan to be Converted, (c) the portion of such Type of Loan to be Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if such Conversion is into a LIBOR Loan, the requested duration of the Interest Period of such Loan. Notwithstanding the foregoing, the Administrative Agent is authorized to rely upon the telephonic request of any of the Borrower’s Agents. The Borrower’s telephonic notices, requests and acceptances shall be directed to such officers of the Administrative Agent as the Administrative Agent may from time to time designate and shall be followed promptly by the original or a facsimile or electronic mail Notice of Conversion required pursuant to the first sentence of this Section 2.12. Each Notice of Conversion shall be irrevocable by and binding on the Borrower once given. (a)    Notes. To the extent requested by any Lender, the Loans made by each Lender shall, in addition to this Agreement, also be evidenced by a Note, payable to the order of such Lender in a principal amount equal to the amount of its Commitment as originally in effect and otherwise duly completed. (b)    Records. The date, amount, interest rate, Type and duration of Interest Periods (if applicable) of each Loan made by each Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by such Lender on its books and such entries shall be binding on the Borrower absent manifest error; provided, however, that (i) the failure of a Lender to make any such record shall not affect the obligations of the Borrower under any of the Loan Documents and (ii) if there is a discrepancy between such records of a Lender and the statements of accounts maintained by the Administrative Agent pursuant to Section 3.8, in the absence of manifest error, the statements of account maintained by the Administrative Agent pursuant to Section 3.8 shall be controlling. (c)    Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the Borrower of (i) written notice from a Lender that a Note of such Lender has been lost, stolen, destroyed or mutilated, and (ii)(A) in the case of loss, theft or destruction, an unsecured agreement of indemnity from such Lender in form reasonably satisfactory to the Borrower, or (B) in the case of mutilation, upon surrender and cancellation of such Note, the Borrower shall at its own expense execute and deliver to such Lender a new Note dated the date of such lost, stolen, destroyed or mutilated Note. The Borrower may terminate or reduce the amount of the Commitments at any time and from time to time without penalty or premium upon not less than five (5) Business Days prior notice to the Administrative Agent of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction (which in the case of any partial reduction of the Commitments shall not be less than $5,000,000 and integral multiples of $1,000,000 in excess of that amount in the aggregate) and shall be irrevocable once given and effective only upon receipt by the Administrative Agent (“Commitment Reduction Notice”); provided, however, (a) the Borrower may not reduce the aggregate amount of the Commitments to an amount that is less than the aggregate outstanding principal amount of the Loans unless, on or before the effective date of such reduction, the Borrower complies with the provisions of Section 2.9(b)(i) and (b) the Borrower may not reduce the aggregate amount of the Commitments below $100,000,000 unless the Borrower is fully terminating the Commitments. Promptly after receipt of a Commitment Reduction Notice the Administrative Agent shall notify each Lender of the proposed termination or Commitment reduction. The Commitments, once reduced pursuant to this Section, may not be increased. The Borrower shall pay all interest and fees, on the Loans accrued to the date of such reduction or termination of the Commitments to the Administrative Agent for the account of the Lenders, including but not limited to any applicable compensation due to each Lender in accordance with Section 5.4 of this Agreement. Borrower shall have the option to extend the Maturity Date from the Original Maturity Date to the Extended Maturity Date, upon satisfaction of each of the following conditions precedent: (a)    The Borrower shall provide the Administrative Agent with written notice of the Borrower's request to exercise the Option to Extend not more than one hundred twenty (120) days but not less than forty-five (45) days prior to the Original Maturity Date; and (b)    As of the date of the Borrower's delivery of notice of request to exercise the Option to Extend, and as of the Original Maturity Date, no Default or Event of Default shall have occurred and be continuing, and Borrower shall so certify in writing; and (c)    The Borrower shall execute or cause the execution of all documents reasonably required by the Administrative Agent to exercise the Option to Extend; and (d)    There shall not have occurred any change in any Borrowing Base Property since the date on which it first became a Borrowing Base Property or the financial condition of the Borrower or the Parent Guarantor from that which existed as of December 31, 2014 that, in the determination of the Administrative Agent in its sole discretion, has had a Material Adverse Effect; and (e)    On or before the Original Maturity Date, the Borrower shall pay to the Administrative Agent all closing and recording costs, the costs of preparing any extension documents, including reasonable attorney’s fees if any, and any other reasonable costs and expense associated with the Borrower’s exercise of its extension right; and (f)    On or before the Original Maturity Date, Borrower shall pay to the Administrative Agent the fee provided for in Section 3.5(c); and (g)    Borrower shall be in compliance with all of the covenants set forth in Section 10.1. Notwithstanding any other term of this Agreement or any other Loan Document, no Lender shall make any Loan in an amount which, immediately after the making of such Loan, would cause the aggregate principal amount of all outstanding Loans to exceed the aggregate amount of the Commitments at such time. The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of any Loan made by any Lender or any of its Affiliates pursuant to the Loan Documents as requested by any of the Borrower’s Agents to any of the accounts designated in the Disbursement Instruction Agreement. (a)    Request for and Conditions of Increase. The Borrower shall have the right to request increases in the aggregate amount of the Commitments by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such increases the aggregate amount of the Commitments shall not exceed $450,000,000. Each such increase in the Commitments must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent, in consultation with the Borrower, shall manage all aspects of the syndication of such increase in the Commitments, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase and the allocations of the increase in the Commitments among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Commitment. No Person shall become a Lender hereto pursuant to this Section 2.18 without the approval of Borrower. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Commitment hereunder) (and as a condition thereto) purchase from the other Lenders its Commitment Percentage or, in the case of a Lender that is increasing its Commitment, a percentage equal to the increase of its Commitment Percentage (determined in each case with respect to the Lenders’ relative Commitments and after giving effect to the increase of Commitments) of any outstanding Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Loans to be purchased by such Lender plus (B) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Loans. The Borrower shall pay to the Lenders amounts payable, if any, to such Lenders under Section 5.4 as a result of the prepayment of any such Loans. Effecting the increase of the Commitments under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be true or correct on the effective date of such increase except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, and (z)  the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of (A) all corporate, partnership or other necessary action taken by the Borrower to authorize such increase and (B) all corporate, partnership, limited liability company or other necessary action taken by each Guarantor authorizing the guaranty of such increase; (ii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; (iii) a supplement to this Agreement executed by the Borrower and by any new Lender and existing Lender that is increasing its Commitment confirming the amount of such new or increased Commitments; (iv) new Notes executed by the Borrower, payable to any new Lenders and replacement Notes executed by the Borrower, payable to any existing Lenders increasing their Commitments, in the amount of such Lender’s Commitment at the time of the effectiveness of the applicable increase in the aggregate amount of the Commitments; (v) ratification by the Parent Guarantor and Subsidiary Guarantors of their obligations to which they are parties; and (vi) such other documents, instruments, title insurance endorsements and information as Administrative Agent shall reasonably request. In connection with any increase in the aggregate amount of the Commitments pursuant to this Section 2.18, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act. (b)    Payment of Interest and Fees. Interest and fees accrued hereunder prior to the effective date of any increase in the Commitments shall be allocated among the Lenders based on their Commitment Percentages prior to such increase in the Commitments, and interest and fees accruing from and after the effective date of such increase in the Commitments shall be allocated among the Lenders based on their Commitment Percentages following such increase in the Commitments. (a)    Payments by Borrower. Except to the extent otherwise provided herein, all payments of principal, interest, Fees and other amounts to be made by the Borrower under this Agreement, the Notes or any other Loan Document shall be made in Dollars, in immediately available funds, without setoff, deduction or counterclaim, to the Administrative Agent at the Principal Office, not later than 1:00 p.m. Central time on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). Subject to Section 11.5, the Borrower shall, at the time of making each payment under this Agreement or any other Loan Document, specify to the Administrative Agent the amounts payable by the Borrower hereunder to which such payment is to be applied. Each payment received by the Administrative Agent for the account of a Lender under this Agreement or any Note shall be paid to such Lender by wire transfer of immediately available funds in accordance with the wiring instructions provided by such Lender to the Administrative Agent from time to time, for the account of such Lender at the applicable Lending Office of such Lender. In the event the Administrative Agent fails to pay such amounts to such Lender within one (1) Business Day of receipt of such amounts, the Administrative Agent shall pay interest on such amount at a rate per annum equal to the Federal Funds Rate from time to time in effect. If the due date of any payment under this Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day such date shall be extended to the next succeeding Business Day and interest shall continue to accrue at the rate, if any, applicable to such payment for the period of such extension. (b)    Presumptions Regarding Payments by Borrower. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may (but shall not be obligated to), in reliance upon such assumption, distribute to the Lenders, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders, as the case may be, severally agrees to repay to the Administrative Agent on demand that amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Except to the extent otherwise provided herein: (a) each borrowing from Lenders under Section 2.1 shall be made from the Lenders, each payment of the fees under Sections 3.5(a), 3.5(b) and 3.5(c) shall be made for the account of the Lenders, and each termination or reduction of the amount of the Commitments under Section 2.14 shall be applied to the respective Commitments of the Lenders, pro rata according to the amounts of their respective Commitments; (b) each payment or prepayment of principal of Loans by the Borrower shall be made for the account of the Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans held by them, provided that if immediately prior to giving effect to any such payment in respect of any Loans the outstanding principal amount of the Loans shall not be held by the Lenders pro rata in accordance with their respective Commitments in effect at the time such Loans were made, then such payment shall be applied to the Loans in such manner as shall result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by the Lenders pro rata in accordance with their respective Commitments; (c) each payment of interest on Loans by the Borrower shall be made for the account of the Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders; and (d) the Conversion and Continuation of Loans of a particular Type (other than Conversions provided for by Section 5.1) shall be made pro rata among the Lenders according to the amounts of their respective Loans and the then current Interest Period for each Lender’s portion of each Loan of such Type shall be coterminous. Any payment or prepayment of principal or interest made (i)(A) during the existence of a Default or Event of Default or (B) pursuant to Section 2.9(b)(ii), shall be made for the account of the Lenders in accordance with the order set forth in Section 11.5 and (ii) pursuant to Section 2.9(b)(i), shall be made for the account of the Lenders holding Commitments (or, if the Commitments have been terminated, holding Loans, in accordance with the order set forth in Section 11.5. If a Lender shall obtain payment of any principal of, or interest on, any Loan under this Agreement or shall obtain payment on any other Obligation owing by the Borrower or any other Loan Party through the exercise of any right of set-off, banker’s lien, counterclaim or similar right or otherwise or through voluntary prepayments directly to a Lender or other payments made by or on behalf of the Borrower or any other Loan Party to a Lender not in accordance with the terms of this Agreement and such payment should be distributed to the Lenders in accordance with Section 3.2 or Section 11.5, such Lender shall promptly purchase from such other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans made by the other Lenders or other Obligations owed to such other Lenders in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such payment (net of any reasonable expenses which may actually be incurred by such Lender in obtaining or preserving such benefit) in accordance with the requirements of Section 3.2 or Section 11.5, as applicable. To such end, all the Lenders shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored. The Borrower agrees that any Lender so purchasing a participation (or direct interest) in the Loans or other Obligations owed to such other Lenders may exercise all rights of set-off, banker’s lien, counterclaim or similar rights with the respect to such participation as fully as if such Lender were a direct holder of Loans in the amount of such participation. Nothing contained herein shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower. No Lender shall be responsible for the failure of any other Lender to make a Loan or to perform any other obligation to be made or performed by such other Lender hereunder, and the failure of any Lender to make a Loan or to perform any other obligation to be made or performed by it hereunder shall not relieve the (a)    Closing Fee. On the Effective Date, the Borrower agrees to pay to the Administrative Agent and each Lender all loan fees as have been agreed to in writing by the Borrower and the Administrative Agent. (b)    Unused Fees. The Borrower agrees to pay to the Administrative Agent for the account of the Lenders an unused fee equal to the sum of the daily amount by which the aggregate amount of the Commitments exceeds the aggregate outstanding principal balance of Loans set forth in the table below multiplied by the corresponding per annum rate: Amount by Which Commitments Exceed Loans Unused Fee $0 to and including an amount less than 50% of the aggregate amount of the Commitments 0.20% Greater than or equal to an amount equal to 50% of the aggregate amount of the Commitments 0.30% Such fee shall be computed on a daily basis and payable quarterly in arrears on the first day of each January, April, July and October during the term of this Agreement and on the Maturity Date or any earlier date of termination of the Commitments or reduction of the Commitments to zero. (c)    Extension Fee. If the Borrower exercises its right to extend the Maturity Date in accordance with Section 2.15, the Borrower agrees to pay to the Administrative Agent for the account of each Lender a fee equal to 0.15% of the amount of such Lender’s Commitment (whether or not utilized). (d)    Administrative and Other Fees. The Borrower agrees to pay the administrative and other fees of the Administrative Agent, the Syndication Agent and the Arrangers as provided in the Fee Letter and as may be otherwise agreed to in writing from time to time. All fees payable hereunder shall be paid on the dates due and in immediately available funds, to the Administrative Agent for distribution, in the case of facility fees, to the applicable Lenders. Fees paid shall not be refundable under any circumstances. Unless otherwise expressly set forth herein, any accrued interest on any Loan, any Fees or other Obligations due hereunder shall be computed on the basis of a year of 360 days and the actual number of days elapsed. In no event shall the amount of interest due or payable on the Loans or other Obligations exceed the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by the Borrower or any other Loan Party or received by any Lender, then such excess sum shall be credited as a payment of principal, unless the Borrower shall notify the respective Lender in writing that the Borrower elects to have such excess sum returned to it forthwith. It is the express intent of the parties hereto that the Borrower not pay and the Lenders not receive, directly or indirectly, in any manner whatsoever, interest in excess of that which may be lawfully paid by the Borrower under Applicable Law. The parties hereto hereby agree and stipulate that the only charge imposed upon the Borrower for the use of money in connection with this Agreement is and shall be the interest specifically described in Section 2.6(a)(i) and (ii). Notwithstanding the foregoing, the parties hereto further agree and stipulate that all agency fees, syndication fees, facility fees, underwriting fees, default charges, late charges, funding or “breakage” charges, increased cost charges, attorneys’ fees and reimbursement for costs and expenses paid by the Administrative Agent or any Lender to third parties or for damages incurred by the Administrative Agent or any Lender, are charges made to compensate the Administrative Agent or any such Lender for underwriting or administrative services and costs or losses performed or incurred, and to be performed or incurred, by the Administrative Agent and the Lenders in connection with this Agreement and shall under no circumstances be deemed to be charges for the use of money. All charges other than charges for the use of money shall be fully earned and nonrefundable when due. The Administrative Agent will account to the Borrower monthly with a statement of Loans, accrued interest and Fees, charges and payments made pursuant to this Agreement and the other Loan Documents, and such account rendered by the Administrative Agent shall be deemed conclusive upon the Borrower absent manifest error. The failure of the Administrative Agent to deliver such a statement of accounts shall not relieve or discharge the Borrower from any of its obligations hereunder. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law: (a)    Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Requisite Lenders and in Section 13.7. (b)    Defaulting Lender Waterfall. Any payment of principal, interest, Fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article XI or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.4 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative 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 Administrative 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 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 Article VI 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 held by the Lenders pro rata as if there had been no Lenders that were Defaulting Lenders. 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. (c)    Certain Fees. No Defaulting Lender shall be entitled to receive any Fee payable under Section 3.5(b) or 3.5(c) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender). (d)    Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders as if there had been no Lenders that were Defaulting Lenders, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. (e)    Purchase of Defaulting Lender’s Commitment. During any period that a Lender is a Defaulting Lender, the Borrower may, by the Borrower giving written notice thereof to the Administrative Agent, such Defaulting Lender and the other Lenders, demand that such Defaulting Lender assign its Commitment and Loans to an Eligible Assignee subject to and in accordance with the provisions of Section 13.6(b). No party hereto shall have any obligation whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. In addition, any Lender which is not a Defaulting Lender may, but shall not be obligated, in its sole discretion, to acquire the face amount of all or a portion of such Defaulting Lender’s Commitment and Loans via an assignment subject to and in accordance with the provisions of Section 13.6(b). In connection with any such assignment, such Defaulting Lender shall promptly execute all documents reasonably requested to effect such assignment, including an appropriate Assignment and Assumption and, notwithstanding Section 13.6(b), shall pay to the Administrative Agent an assignment fee in the amount of $7,500. The exercise by the Borrower of its rights under this Section shall be at the Borrower’s sole cost and expense and at no cost or expense to the Administrative Agent or any of the Lenders. (a)    Defined Terms. For purposes of this Section, the term “Applicable Law” includes FATCA. (b)    Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower or any other Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower or other applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. (c)    Payment of Other Taxes by the Borrower. The Borrower and the other Loan Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes. (d)    Indemnification by the Borrower. The Borrower and the other Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability (together with reasonably appropriate details supporting the calculation of such payment or liability) delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (e)    Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower or another Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower and the other Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.6 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this subsection. (f)    Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower or any other Loan Party to a Governmental Authority pursuant to this Section, the Borrower or such other Loan Party shall deliver to the Administrative 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 the Administrative Agent. (g)    Status of Lenders. (i)    Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in the immediately following clauses (ii)(A), (ii)(B) and (ii)(D)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii)    Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person: (A)    any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax; (B)    any Foreign Lender shall, to the extent it is legally entitled to do so, Agent), whichever of the following is applicable: (I)    in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (II)    an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8ECI; (III)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) an Administrative Agent) of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or (IV)    to the extent a Foreign Lender is not the beneficial owner, an Administrative Agent) of an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner; (C)    any Foreign Lender shall, to the extent it is legally entitled to do so, Agent), an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and (D)    if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as Agent at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so. (h)    Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection (plus any Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (i)    Amendment and Restatement. For purposes of determining withholding taxes imposed under the FATCA, from and after the effective date of this Agreement the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). (j)    Survival. Each party’s obligations under this Section shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.4, 3.1(b) or 12.8, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion. (a)    Initial Borrowing Base Properties. On the Effective Date, the Initial Borrowing Base Properties shall be the sole Borrowing Base Properties, and the Operating Property Value initially attributable to such Property shall be as approved by the Lenders and set forth on Schedule 4.1. (b)    Additional Borrowing Base Properties. If after the Effective Date the Borrower desires that the Lenders include any additional Property in calculation of the provisions of Sections 10.1(b)(ii), (f) and (g), the Borrower shall so notify the Administrative Agent in writing. To the extent such Property is not an Eligible Property, such Property shall only be included as a Borrowing Base Property and included in the calculation of Unencumbered Borrowing Base Asset Value upon the consent of the Requisite Lenders in their sole discretion. No Property will be included as a Borrowing Base Property unless the Borrower delivers to the Administrative Agent the following, in form and substance satisfactory to the Administrative Agent: (i)    An executive summary of the Property including, at a minimum, the following information relating to such Property: (A) a description of such Property, such description to include the age, location, site plan and physical condition of such Property; (B) the purchase price paid or to be paid for such Property; (C) the current and projected condition of the regional market and specific submarket in which such Property is located; and (D) the current projected capital plans and, if applicable, current renovation plans for such Property; (ii)    An operating statement for such Property audited or certified by a representative of the Borrower as being true and correct in all material respects and prepared in accordance with GAAP for the previous three fiscal years, as well as operating statements for the most recent month, the year-to-date and the trailing twelve months, provided that, with respect to any period such Property that was owned by the Borrower or a Subsidiary for less than three years, such information shall only be required to be delivered to the extent reasonably available to the Borrower and such certification may be based upon the Borrower’s knowledge and provided further, that if such Property has been operating for less than three years, the Borrower shall provide such projections and other information concerning the anticipated operation of such Property as the Administrative Agent may reasonably request; (iii)    To the extent available, three-year historical and pro forma capital expenditure reports and projections; (iv)    Copies of any ground lease with respect to such Property; (v)    The Smith Travel STAR Report (or any successor thereto or substitute therefor reasonably acceptable to the Administrative Agent) for such Property and its primary competitive set for the most current month available, along with the prior year-end report; (vi)    Any PIP required to remain in compliance with the applicable Franchise Agreement and Management Agreement; (vii)    Copies of all policies of insurance required by Section 8.5; (viii)    Seismic reports, if applicable and available to the Borrower, relating to such Property; and (ix)    Such other information the Administrative Agent may reasonably request in order to evaluate the Property. Upon its receipt of the foregoing documents and information, the Administrative Agent will promptly send the foregoing documents and information to each of the Lenders. (c)    Property Addition. With respect to any proposed Borrowing Base Property under subsection (b) above, such Property shall become a Borrowing Base Property upon execution and delivery to the Administrative Agent of (i) a Compliance Certificate showing the calculation of the provisions of Sections 10.1(b)(ii), (f) and (g) after inclusion of such Property as a Borrowing Base Property, and certifying that such Property constitutes an Eligible Property, (ii) if such property is owned by a Subsidiary of the Borrower, all of the items required to be delivered to the Administrative Agent under Section 4.2(a) if not previously delivered, and (iii) such other items or documents as may be reasonably appropriate under the circumstances, including updates of the documents described in the immediately preceding subsection (b), and satisfaction of all other closing requirements reasonably imposed by the Administrative Agent. (d)    Release of Borrowing Base Properties. The Borrower may request, by providing not less than five (5) days’ prior written notice (with such notice to be accompanied by the certificate described in clause (iii) below and any other documentation reasonably necessary to permit the Administrative Agent to determine if the conditions in clauses (i) and (ii) below have been satisfied) to the Administrative Agent, to remove a Borrowing Base Property from the Borrowing Base Pool (but only in connection with a refinancing or sale of such Property), which removal (the “Borrowing Base Property Removal”) shall be effected by the Administrative Agent if the Administrative Agent determines all of the following conditions are satisfied as of the date of such Borrowing Base Property Removal: (i)    No Default or Event of Default exists or will exist immediately after giving effect to such Borrowing Base Property Removal; (ii)    Immediately prior to such Borrowing Base Property Removal the Borrower is in compliance with the covenants set forth in this Agreement (including the provisions of Section 10.1); and (iii)    The Borrower shall have delivered to the Administrative Agent a certificate demonstrating on a pro forma basis as of the date of the most recently delivered Compliance Certificate, and the Administrative Agent shall have determined to its satisfaction, that upon such Borrowing Base Property Removal the Borrower shall be in compliance with the provisions of Section 10.1. (a)    Subject to requirements of Applicable Law, within 5 Business Days after the end of any calendar quarter during which any Person becomes a Material Subsidiary after the Agreement Date (or such longer period as may be acceptable to the Administrative Agent), the Borrower shall deliver to the Administrative Agent each of the following in form and substance reasonably satisfactory to the Administrative Agent: (i) an Accession Agreement in the form required pursuant to the Subsidiary Guaranty executed by such Subsidiary and (ii) the items that would have been delivered under subsections (iv) through (viii) of Section 6.1(a) and under Section 6.1(c) if such Subsidiary had been a Material Subsidiary on the Agreement Date. Upon execution and delivery thereof, each such Person shall automatically become a Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity (b)    The Borrower may request, by providing not less than five (5) days’ prior written notice (or such shorter period as may be acceptable to the Administrative Agent) (with such notice to be accompanied by the certificate described in clause (vi) below and any other documentation reasonably necessary to permit the Administrative Agent to determine if the conditions in clauses (i) through (v) below have been satisfied) to the Administrative Agent, to release a Subsidiary Guarantor from its obligations under the Subsidiary Guaranty if such Subsidiary Guarantor ceases to be a Material Subsidiary or becomes an Excluded Subsidiary, which release (the “Guarantor Release”) shall be effected by the Administrative Agent if the Administrative Agent determines all of the following conditions are satisfied as of the date of such Guarantor Release: (i)    Such Subsidiary Guarantor owns no Borrowing Base Property, nor any direct or indirect equity interest in any Subsidiary that owns a Borrowing Base Property; (ii)    Such Subsidiary Guarantor is not otherwise required to be a party to the Subsidiary Guaranty under Section 4.2(a) above; (iii)    No Default or Event of Default exists or will exist immediately after giving effect to such Guarantor Release; (iv)    Immediately prior to such Guarantor Release the Borrower is in compliance with the covenants set forth in this Agreement (including the provisions of Section 10.1); (v)    the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct on and as of the date of such Guarantor Release with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (vi)    The Borrower shall have delivered to the Administrative Agent a have determined to its satisfaction, that upon such Guarantor Release the Borrower shall be in compliance with the provisions of Section 10.1. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request. Value. Initially, the Unencumbered Borrowing Base Asset Value shall be the amount set forth as such in the Compliance Certificate delivered under Section 6.1. Thereafter, the Unencumbered Borrowing Base Asset Value shall be the amount set forth as such in the Compliance Certificate delivered from time to time under Article IX. Any increase in the Operating Property Value of a Borrowing Base Property shall become effective as of the next determination of the Unencumbered Borrowing Base Asset Value as provided in this Section. (a)    Capital Adequacy. If any Lender determines that any Regulatory Change affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity ratios or requirements, 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 Regulatory Change (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time compensate such Lender or such Lender’s holding company for any such reduction suffered. (b)    Additional Costs. In addition to, and not in limitation of the immediately preceding subsection, the Borrower shall promptly pay to the Administrative Agent for the account of a Lender from time to time such amounts as such Lender may determine to be necessary to compensate such Lender for any costs incurred by such Lender that it determines are attributable to its making, Continuing, Converting, or maintaining of any Loans or its obligation to make any Loans hereunder, any reduction in any amount receivable by such Lender under this Agreement or any of the other Loan Documents in respect of any of such Loans or such obligation or the maintenance by such Lender of capital in respect of its Loans or its Commitments (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting from any Regulatory Change that: (i)    changes the basis of taxation of any amounts payable to such Lender under this Agreement or any of the other Loan Documents in respect of any of such Loans or its Commitments (other than Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and Connection Income Taxes); (ii)    imposes or modifies any reserve, special deposit, compulsory loan, insurance charge or similar requirements (other than Regulation D of the Board of Governors of the Federal Reserve System or other similar reserve requirement applicable to any other category of liabilities or category of extensions of credit or other assets by reference to which the interest rate on LIBOR Loans is determined to the extent utilized when determining LIBOR for such LIBOR Loans) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, or other credit extended by, or any other acquisition of funds by such Lender (or its parent corporation), or any commitment of such Lender (including, without limitation, the Commitments of such Lender hereunder); or (iii)        imposes on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or the Loans made by such Lender. (c)        Lender’s Suspension of LIBOR Loans. Without limiting the effect of the provisions of the immediately preceding subsections (a) and (b), if by reason of any Regulatory Change, any Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Lender that includes deposits by reference to which the interest rate on LIBOR Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Lender that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Lender so elects by notice to the Borrower (with a copy to the Administrative Agent), the obligation of such Lender to make or Continue, or to Convert Base Rate Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 5.5 shall apply). (d)    Notification and Determination of Additional Costs. Each of the Administrative Agent and each Lender, as the case may be, agrees to notify the Borrower (and in the case of a Lender, to notify the Administrative Agent) of any event occurring after the Agreement Date entitling the Administrative Agent or such Lender to compensation under any of the preceding subsections of this Section as promptly as practicable; provided, however, that the failure of the Administrative Agent or any Lender to give such notice shall not release the Borrower from any of its obligations hereunder. The Administrative Agent and each Lender, as the case may be, agrees to furnish to the Borrower (and in the case of a Lender to the Administrative Agent as well) a certificate setting forth the basis and amount of each request for compensation under this Section. Determinations by the Administrative Agent or such Lender, as the case may be, of the effect of any Regulatory Change shall be conclusive and binding for all purposes, absent manifest error. The Borrower shall pay the Administrative Agent or any such Lender, as the case may be, the thereof. Anything herein to the contrary notwithstanding, if, on or prior to the determination of LIBOR for any Interest Period: (a)    The Administrative Agent shall reasonably determine (which determination shall be conclusive) that reasonable and adequate means do not exist for ascertaining LIBOR for such Interest Period; (b)    the Administrative Agent reasonably determines (which determination shall be conclusive) that quotations of interest rates for the relevant deposits referred to in the definition of LIBOR are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for LIBOR Loans as provided herein, or (c)    the Administrative Agent reasonably determines (which determination shall be conclusive) that the relevant rates of interest referred to in the definition of LIBOR upon the basis of which the rate of interest for LIBOR Loans for such Interest Period is to be determined are not likely to adequately cover the cost to any Lender of making or maintaining LIBOR Loans for such Interest Period; then the Administrative Agent shall give the Borrower and each Lender prompt notice thereof and, so long as such condition remains in effect, the Lenders shall be under no obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of each current Interest Period for each outstanding LIBOR Loan, either prepay such Loan or Convert such Loan into a Base Rate Loan. Notwithstanding any other provision of this Agreement, if any Lender shall determine (which determination shall be conclusive and binding) that it is unlawful for such Lender to honor its obligation to make or maintain LIBOR Loans hereunder, then such Lender shall promptly notify the Borrower thereof (with a copy of such notice to the Administrative Agent) and such Lender’s obligation to make or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be suspended until such time as such Lender may again make and maintain LIBOR Loans (in which case the provisions of Section 5.5 shall be applicable). The Borrower shall pay to the Administrative Agent for the account of each Lender, upon the request of the Administrative Agent, such amount or amounts as the Administrative Agent shall determine in its sole discretion shall be sufficient to compensate such Lender for any loss, cost or expense attributable to: (a)    any payment or prepayment (whether mandatory or optional) of a LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender for any reason (including, without limitation, acceleration) on a date other than the last day of the Interest Period for such Loan; or (b)    any failure by the Borrower for any reason (including, without limitation, the failure of any of the applicable conditions precedent specified in Section 6.2 to be satisfied) to borrow a LIBOR Loan from such Lender on the date for such borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested date of such Conversion or Continuation. Not in limitation of the foregoing, such compensation shall include, without limitation, an amount equal to the then present value of (A) the amount of interest that would have accrued on such LIBOR Loan for the remainder of the Interest Period at the rate applicable to such LIBOR Loan, less (B) the amount of interest that would accrue on the same LIBOR Loan for the same period if LIBOR were set on the date on which such LIBOR Loan was repaid, prepaid or Converted or the date on which the Borrower failed to borrow, Convert or Continue such LIBOR Loan calculating present value by using as a discount rate LIBOR quoted on such date, including without limitation any losses or expenses incurred in obtaining, liquidating or employing deposits from third parties. Upon the Borrower’s request, the Administrative Agent shall provide the Borrower with a statement setting forth the basis for requesting such compensation and the method for determining the amount thereof. Any such statement shall be conclusive absent manifest error. If the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 5.1(c), Section 5.2, or Section 5.3 then such Lender’s LIBOR Loans shall be automatically Converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion required by Section 5.1(c), Section 5.2, or Section 5.3 on such earlier date as such Lender or the Administrative Agent, as applicable, may specify to the Borrower (with a copy to the Administrative Agent, as applicable)) and, unless and until such Lender or the Administrative Agent, as applicable, gives notice as provided below that the circumstances specified in Section 5.1(e), Section 5.2, or Section 5.3 that gave rise to such Conversion no longer exist: (i)    to the extent that such Lender’s LIBOR Loans have been so Converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s LIBOR Loans shall be applied instead to its Base Rate Loans; and (ii)    all Loans that would otherwise be made or Continued by such Lender as LIBOR Loans shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be Converted into LIBOR Loans shall remain as Base Rate Loans. If such Lender or the Administrative Agent, as applicable, gives notice to the Borrower (with a copy to the Administrative Agent, as applicable) that the circumstances specified in Section 5.1(c), 5.2 or 5.3 that gave rise to the Conversion of such Lender’s LIBOR Loans pursuant to this Section no longer exist (which such Lender or the Administrative Agent, as applicable, agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders are outstanding, then such Lender’s Base Rate Loans shall be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as to principal amounts, Types and Interest Periods) in accordance with their respective Pro Rata Shares. If (a) a Lender requests compensation pursuant to Section 3.10 or 5.1, and the Requisite Lenders are not also doing the same, (b) the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 5.1(c) or 5.3 but the obligation of the Requisite Lenders shall not have been suspended under such Sections or (c) a Lender is a Defaulting Lender, then, so long as there does not then exist any Default or Event of Default, the Borrower may demand that such Lender (the “Affected Lender”), and upon such demand the Affected Lender shall promptly, assign its Commitment to an Eligible Assignee subject to and in accordance with the provisions of Section 13.6(b) for a purchase price equal to the aggregate principal balance of all Loans then owing to the Affected Lender, plus (y) any accrued but unpaid interest thereon and accrued but unpaid fees owing to the Affected Lender, or any other amount as may be mutually agreed upon by such Affected Lender and Eligible Assignee. Each of the Administrative Agent and the Affected Lender shall reasonably cooperate in effectuating the replacement of such Affected Lender under this Section, but at no time shall the Administrative Agent, such Affected Lender, any other Lender or any titled agent be obligated in any way whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. The exercise by the Borrower of its rights under this Section shall be at the Borrower’s sole cost and expense and at no cost or expense to the Administrative Agent, the Affected Lender or any of the other Lenders. The terms of this Section shall not in any way limit the Borrower’s obligation to pay to any Affected Lender compensation owing to such Affected Lender pursuant to this Agreement (including, without limitation, pursuant to Sections 3.10, 5.1 or 5.4) with respect to any period up to the date of replacement. Each Lender agrees that it will use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate an alternate Lending Office with respect to any of its Loans affected by the matters or circumstances described in Sections 3.10, 5.1 or 5.3 to reduce the liability of the Borrower or avoid the results provided thereunder, so long as such designation is not disadvantageous to such Lender as determined by such Lender in its sole discretion, except that such Lender shall have no obligation to designate a Lending Office located in the United States of America. Calculation of all amounts payable to a Lender under this Article shall be made as though such Lender had actually funded LIBOR Loans through the purchase of deposits in the relevant market bearing interest at the rate applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR Loans and having a maturity comparable to the relevant Interest Period; provided, however, that each Lender may fund each of its LIBOR Loans in any manner it sees fit and the foregoing assumption shall be used only for calculation of amounts payable under this Article. The effectiveness of this Agreement is subject to the satisfaction or waiver of (a)    The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i)    counterparts of this Agreement executed by each of the parties hereto; (ii)    a Note payable to each Lender not party to the Third Amended Credit Agreement and a replacement Note payable to each Lender whose Commitment is being increased pursuant to this Agreement (excluding, in each case, any Lender that has requested that it not receive a Note), in each case complying with the terms of Section 2.13(a); (iii)    the Guaranty executed by each of the Guarantors initially to be a party thereto; (iv)    (A) an opinion of Polsinelli PC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders; (v)    the certificate or articles of incorporation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of organization or formation of such Person; (vi)    a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Person and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Person is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (vii)    a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Person authorized to execute and deliver the Loan Documents to which such Person is a party; (viii)    copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Person, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Person to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (ix)    a Compliance Certificate for the Parent Guarantor’s fiscal quarter ended December 31, 2014; (x)    a Disbursement Instruction Agreement effective as of the Agreement Date; (xi)    evidence that the Fees, if any, then due and payable under Section 3.5, together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; (xii)    evidence reasonably satisfactory to the Administrative Agent that (A) all accrued and unpaid interest, fees and expenses under the Third Amended Credit Agreement shall have been fully paid, the commitments thereunder shall be amended and restated as of the date hereof as set forth on Schedule 1 hereto, and any and all Liens thereunder have been terminated and released and (B) each under the “Loan Documents” as defined in the Third Amended Credit Agreement); and (xiii)    such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; (b)    no Default or Event of Default shall exist; (c)    the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and (d)    The representations and warranties made or deemed made by the Borrower and each other Loan Party in this Agreement and in the other Loan Documents delivered pursuant to Section 6.1 shall be true and correct. The obligations of the Lenders to make any Loans are subject to the further conditions precedent that: (a) no Default or Event of Default shall exist as of the date of the making of such Loan or would exist immediately after giving effect thereto, and no violation of the limits described in Section 2.16 would occur after giving effect thereto; (b) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct on and as of the date of the making of such Loan with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (c) in the case of the borrowing of Loans, the Administrative Agent shall have received a timely Notice of Borrowing. Each Credit Event shall constitute a certification by the Borrower to the effect set forth in the preceding sentence (both as of the date of the giving of notice relating to such Credit Event and, unless the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit Event, as of the date of the occurrence of such Credit Event). In addition, the Borrower shall be deemed to have represented to the Administrative Agent and the Lenders at the time such Loan is made that all conditions to the making of such Loan contained in this Article VI have been satisfied. If the Lenders permit the making of any Loans prior to the satisfaction of all conditions precedent set forth in Sections 6.1, 6.2 or 6.3 but require the Borrower to cause such condition or conditions to be satisfied after the date of the making of such Loans, the Borrower shall enter into a supplementary agreement establishing the conditions to be satisfied thereafter and the time by which they must be satisfied, as reasonably required by the Administrative Agent. Unless set forth in writing to the contrary, the making of its initial Loan by a Lender shall constitute a confirmation by such Lender to the Administrative Agent and the other Lenders that insofar as such Lender is concerned the Borrower has satisfied the conditions precedent for initial Loans set forth in Sections 6.1 and 6.2. In order to induce the Administrative Agent and each Lender to enter into this Agreement and to make Loans, the Borrower represents and warrants to the Administrative Agent and each Lender as follows: (a)    Organization; Power; Qualification. Each of the Loan Parties is a corporation, trust, partnership or other legal entity, duly organized or formed, validly existing and in good standing under the jurisdiction of its incorporation or formation, has the requisite corporate, trust, partnership or limited liability company power and authority to own or lease its respective properties and to carry on its respective business and is duly qualified as, and is in good standing as a foreign corporation, partnership or other legal entity and authorized to do business, in each jurisdiction in which the character of its properties or the nature of its business requires such qualification or authorization and where the failure to be so qualified or authorized could reasonably be expected to have, in each instance, a Material Adverse Effect. (b)    Ownership Structure. Part I of Schedule 7.1(b) is, as of the Agreement Date, a complete and correct list of the Parent Guarantor and all of its Subsidiaries setting forth for each such Subsidiary, (i) the jurisdiction of organization of such Person, (ii) each Person holding any Equity Interest in such Person, (iii) the nature of the Equity Interests held by each such Person and (iv) the percentage of ownership of such Person represented by such Equity Interests. As of the Agreement Date, except as disclosed in such Schedule (A), each of the Parent Guarantor, the Borrower and their Subsidiaries owns, free and clear of all Liens, and has the unencumbered right to vote, all outstanding Equity Interests in each Person shown to be held by it on such Schedule, (B) all of the issued and outstanding capital stock of each such Person organized as a corporation is validly issued, fully paid and nonassessable and (C) there are no outstanding subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind (including, without limitation, any stockholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or outstanding securities convertible into, any additional shares of capital stock of any class, or partnership or other Equity Interests of any type in, any such Person. As of the Agreement Date, Part II of Schedule 7.1(b) correctly sets forth all Unconsolidated Affiliates of the Parent Guarantor and its Subsidiaries, including the correct legal name of such Person, the type of legal entity which each such Person is, and all Equity Interests in such Person held directly or indirectly by the Parent Guarantor or the Borrower. Part I of Schedule 7.1(b) may be updated from time to time in accordance with the terms of this Agreement. (c)    Authorization of Agreement, Notes, Loan Documents and Borrowings. The Borrower has the requisite partnership power, and has taken all necessary limited partnership action, and the Parent Guarantor has taken all necessary action, to authorize the Borrower, to borrow and obtain other extensions of credit hereunder. The Borrower and each other Loan Party has the requisite corporate, partnership or limited liability company power, and has taken all necessary corporate, partnership or limited liability company action, and the Parent Guarantor has taken all necessary action, to authorize each Loan Party, to execute, deliver and perform each of the Loan Documents and the Fee Letter to which it is a party in accordance with their respective terms and perform its respective obligations thereunder. The Loan Documents and the Fee Letter to which the Borrower or any other Loan Party is a party have been duly executed and delivered by the duly authorized officers of such Person and each is a legal, valid and binding obligation of such Person enforceable against such Person in accordance with its respective terms, except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of certain obligations contained herein or therein and as may be limited by equitable principles generally. (d)    Compliance of Agreement, Etc. with Laws. The execution, delivery and performance of this Agreement and the other Loan Documents to which any Loan Party is a party and the Fee Letter in accordance with their respective terms and the borrowings and other extensions of credit hereunder do not and will not, by the passage of time, the giving of notice, or both: (i) require any Governmental Approval that has not been obtained or violate any Applicable Law (including any Environmental Law) relating to any Loan Party; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of any Loan Party, or any indenture, agreement or other instrument to which any Loan Party is a party or by which it or any of its respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any Property now owned or hereafter acquired by any Loan Party other than in favor of the Administrative Agent for its benefit and the benefit of the Lenders. (e)    Compliance with Law; Governmental Approvals. Each Loan Party and each Subsidiary of any Loan Party is in compliance with each Governmental Approval and all other Applicable Laws relating to it except for noncompliances which, and Governmental Approvals the failure to possess which, could not, individually or in the aggregate, reasonably be expected to cause a Default or Event of Default or have a Material Adverse Effect. (f)    Title to Properties; Liens. Schedule 7.1(f) is, as of the Agreement Date, a complete and correct listing of all real estate assets of the Loan Parties. Each of the Loan Parties holds good, marketable and insurable title each Property purported to be owned by it (or, in the case of the leasehold estate under a ground lease, a good, valid and insurable leasehold estate), subject only to Permitted Liens, and has good and sufficient title to, or a valid leasehold interest in, all FF&E and other personal property (except such as may be owned by the Manager as provided in the applicable Management Agreement) necessary for the continued operating of such Property in the ordinary course. No Borrowing Base Property is subject to any Lien other than Permitted Liens. Each of the Borrowing Base Properties satisfies all of the requirements under the Loan Documents for being an Eligible Property. (g)    Existing Indebtedness. Schedule 7.1(g) is, as of the Agreement Date, a complete and correct listing of all Indebtedness (including all Guarantees of Indebtedness) of each of the Loan Parties and the other Subsidiaries, and if such Indebtedness is secured by any Lien, a description of all of the property subject to such Lien. As of the Agreement Date, the Loan Parties and the other Subsidiaries are in compliance in all material respects with all of the terms of such Indebtedness and all instruments and agreements relating thereto, and no default or event of default, or event or condition which with the giving of notice, the lapse of time, or both, would constitute a default or event of default, exists with respect to any such Indebtedness. (h)    Material Contracts. Schedule 7.1(h) is, as of the Agreement Date, a true, correct and complete listing of all Material Contracts. Each of the Loan Parties that is party to any Material Contract has performed and is in compliance in all material respects with all of the terms of such Material Contract, and no notice, the lapse of time, or both, would constitute such a default or event of default, exists with respect to any such Material Contract. (i)    Litigation. Except as set forth on Schedule 7.1(i), there are no actions, suits or proceedings pending (nor, to the knowledge of Borrower, are there any actions, suits or proceedings threatened, nor is there any basis therefor) against or in any other way relating adversely to or affecting, any Loan Party, any Subsidiary of any Loan Party or any of their respective properties (except for claims for personal injury or property damage that are covered by insurance and, in the case of actions or proceedings that have been commenced, have been tendered to the insurer for defense and with respect to which the insurer has not denied coverage) in any court or before any arbitrator of any kind or before or by any other Governmental Authority which, (i) if adversely determined, could reasonably be expected to have a Material Adverse Effect or (ii) in any manner draws into question the validity or enforceability of any Loan Documents or the Fee Letter. There are no strikes, slow downs, work stoppages or walkouts or other labor disputes in progress or threatened relating to, any Loan Party or any Subsidiary of any Loan Party. (j)    Taxes. All federal, state and other tax returns of, each Loan Party and each other Subsidiary of the Parent Guarantor required by Applicable Law to be filed have been duly filed, and all federal, state and other taxes, assessments and other governmental charges or levies upon, each Loan Party, each other Subsidiary of the Parent Guarantor, and their respective Properties, income and other assets which are material in amount are due and payable have been paid, except any such nonpayment or non-filing which is at the time permitted under Section 8.6. As of the Agreement Date, none of the United States income tax returns of, any Loan Party is under audit. (k)    Financial Statements. The Borrower has furnished to each Lender copies of the audited consolidated balance sheet of the Parent Guarantor and its consolidated Subsidiaries for the fiscal year ended December 31, 2016, together with the related consolidated statements of operations, shareholders’ equity and cash flow for the fiscal quarter ended on such date. Such balance sheet and statements (including related schedules and notes) are complete and correct in all material respects and present fairly, in accordance with GAAP (subject to Section 1.2(a)) consistently applied throughout the periods involved, the consolidated financial position of the Parent Guarantor and its consolidated Subsidiaries as at such date and the results of operations and the cash flow for such period. (l)    No Material Adverse Effect. Since December 31, 2016, there has been no event, change, circumstance or occurrence that could reasonably be expected to have a Material Adverse Effect. Each of the Loan Parties is Solvent. (m)    Operating Statements. The operating statements and other information for each Borrowing Base Property delivered by the Borrower to the Administrative Agent fairly present the Operating Expenses, Gross Operating Revenues, Net Operating Income and Adjusted NOI for each Borrowing Base Property and all Borrowing Base Properties, collectively, for the period then ended. (n)    ERISA. Each member of the ERISA Group has fulfilled its obligations under the contribution requirements of ERISA and the Internal Revenue Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Internal Revenue Code with respect to each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to make any contribution or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Internal Revenue Code or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA. (o)    Absence of Default. None of the Loan Parties or their Subsidiaries is in default under its articles of incorporation, bylaws, partnership agreement or other similar organizational documents, and no event has occurred, which has not been remedied, cured or waived: (i) which constitutes a Default or an Event of Default; or (ii) which constitutes, or which with the passage of time, the giving of notice, or both, would constitute, a default or event of default by, such Person under any agreement (other than this Agreement) or judgment, decree or order to which any such Person is a party or by which any such Person or any of its respective properties may be bound where such default or event of default could, individually or in the aggregate, have a Material Adverse Effect. (p)    Environmental Laws. Each of the Loan Parties and their Subsidiaries: (i) is in compliance with all Environmental Laws applicable to its business, operations and the Properties, (ii) has obtained all Governmental Approvals which are required under Environmental Laws, and each such Governmental Approval is in full force and effect, and (iii) is in compliance with all terms and conditions of such Governmental Approvals, where with respect to each of the immediately preceding clauses (i) through (iii) the failure to obtain or to comply with could be reasonably expected to have a Material Adverse Effect. Except for any of the following matters that could not be reasonably expected to have a Material Adverse Effect, no Loan Party has any knowledge of, nor has received notice of, any past present or pending releases, events, conditions, circumstances, activities, practices, incidents, facts, occurrences, actions, or plans that, with respect to any Loan Party or any Subsidiary of any Loan Party, its respective businesses or operations or with respect to its Properties, may: (i) cause or contribute to an actual or alleged violation of or noncompliance with Environmental Laws, (ii) cause or contribute to any other potential common law or legal claim or other liability, or (iii) cause any of its Properties to become subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law or require the filing or recording of any notice, approval or disclosure document under any Environmental Law and, with respect to the immediately preceding clauses (i) through (iii) is based on or related to the on-site or off‑site manufacture, generation, processing, distribution, use, treatment, storage, disposal, transport, removal, clean up or handling, or the emission, discharge, release or threatened release of any wastes or Hazardous Material, or any other requirement under Environmental Law. There is no civil, criminal, or administrative action, suit, demand, claim, hearing, notice, or demand letter, mandate, order, lien, request, investigation, or proceeding pending or, to the Borrower’s knowledge after due inquiry, threatened, against any Loan Party or any Subsidiary of any Loan Party relating in any way to Environmental Laws which, reasonably could be expected to have a Material Adverse Effect. None of the Properties of the Loan Parties or any of their Subsidiaries is listed on or proposed for listing on the National Priority List promulgated pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and its implementing regulations, or any state or local priority list promulgated pursuant to any analogous state or local law. To the Borrower’s knowledge, no Hazardous Materials generated at or transported from any Property of any Loan Party or any Subsidiary of any Loan Party is or has been transported to, or disposed of at, any location that is listed or proposed for listing on the National Priority List or any analogous state or local priority list, or any other location that is or has been the subject of a clean-up, removal or remedial action pursuant to any Environmental Law, except to the extent that such transportation or disposal could not (q)    Investment Company. No Loan Party is (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or (ii) subject to any other Applicable Law which purports to regulate or restrict its ability to borrow money or obtain other extensions of credit or to consummate the transactions contemplated by this Agreement or to perform its obligations under any Loan Document to which it is a party. (r)    Margin Stock. No Loan Party is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System. (s)    Affiliate Transactions. Except as permitted by Section 10.9 or as otherwise set forth on Schedule 7.1(s), no Loan Party is a party to or bound by any agreement or arrangement (whether oral or written) with any Affiliate. (t)    Intellectual Property. Each of the Loan Parties owns or has the right to use, under valid license agreements or otherwise, all patents, licenses, franchises, trademarks, trademark rights, trade names, trade name rights, trade secrets and copyrights (collectively, “Intellectual Property”), if any, necessary to the conduct of its businesses, without known conflict with any patent, license, franchise, trademark, trade secret, trade name, copyright, or other proprietary right of any other Person. (u)    Business. As of the Agreement Date, the principal business of the Parent Guarantor, the Borrower and their Subsidiaries is the ownership and/or leasing of hotel properties. (v)    Broker’s Fees. No broker’s or finder’s fee, commission or similar compensation will be payable with respect to the transactions contemplated hereby. No other similar fees or commissions will be payable by any Loan Party for any other services rendered to any Loan Party or any Subsidiary of any Loan Party ancillary to the transactions contemplated hereby. (w)    Accuracy and Completeness of Information. All written information, reports and other papers and data furnished to the Administrative Agent or any Lender by, on behalf of, or at the direction of, any Loan Party were, at the time the same were so furnished, complete and correct in all material respects, or, in the case of financial statements, present fairly, in accordance with GAAP (subject to Section 1.2(a)) consistently applied throughout the periods involved, the financial position of the Persons involved as at the date thereof and the results of operations for such periods. To Borrower’s knowledge, there is no fact is known to any Loan Party which has had, or may in the future have (so far as the Borrower can reasonably foresee), a Material Adverse Effect which has not been set forth in the financial statements referred to in Section 7.1(k) or in such information, reports or other papers or data or otherwise disclosed in writing to the Administrative Agent and the Lenders prior to the Effective Date. No document furnished or written statement made to the Administrative Agent or any Lender in connection with the negotiation, preparation or execution of, or pursuant to, this Agreement or any of the other Loan Documents contains or will contain any untrue statement of a fact material to the creditworthiness of any Loan Party or omits or will omit to state a material fact necessary in order to make the statements contained therein not misleading. (x)    Not Plan Assets; No Prohibited Transactions. For purposes of ERISA and the Internal Revenue Code, none of the assets of any Loan Party or any of their Subsidiaries constitutes “plan assets”, within the meaning of ERISA and the regulations promulgated thereunder, of any Plan. The execution, delivery and performance of the Loan Documents and the Fee Letter by the Loan Parties, and the borrowing, other credit extensions and repayment of amounts thereunder, do not and will not constitute “prohibited transactions” under ERISA or the Internal Revenue Code. (y)    Anti-Corruption Laws and Sanctions. None of the Borrower, any Subsidiary, any of their respective directors, officers, or, to the knowledge of the Borrower or such Subsidiary, employees, Affiliates or any agent or representative of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from this Agreement, (i) is a Sanctioned Person or currently the subject or target of any Sanctions, (ii) has its assets located in a Sanctioned Country, (ii) directly or indirectly derives revenues from investments in, or transactions with, Sanctioned Persons or (iv) has violated any Anti-Money Laundering Law in any material respect. Each of the Borrower and its Subsidiaries, and to the knowledge of Borrower, each director, officer, employee, agent and Affiliate of Borrower and each such Subsidiary, is in compliance with the Anti-Corruption Laws in all material respects. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance with the Anti-Corruption Laws and applicable Sanctions by the Borrower, its Subsidiaries, their respective directors, officers, employees, Affiliates and agents and representatives of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from this Agreement. All statements contained in any certificate, financial statement or other instrument delivered by or on behalf of any Loan Party to the Administrative Agent or any Lender pursuant to or in connection with this Agreement or any of the other Loan Documents (including, but not limited to, any such statement made in or in connection with any amendment thereto or any statement contained in any certificate, financial statement or other instrument delivered by or on behalf of any Loan Party prior to the Agreement Date and delivered to the Administrative Agent or any Lender in connection with the underwriting or closing the transactions contemplated hereby) shall constitute representations and warranties made by the Borrower under this Agreement. All representations and warranties made under this Agreement and the other Loan Documents shall be deemed to be made at and as of the Agreement Date, the Effective Date and at and as of the date of the occurrence of each Credit Event, except to the extent that such representations and warranties expressly relate solely to an earlier date circumstances expressly and specifically permitted hereunder. All such representations and warranties shall survive the effectiveness of this Agreement, the execution and delivery of the Loan Documents and the making of the Loans. For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required pursuant to Section 13.7, all of the Lenders) shall otherwise consent in the manner provided for in Section 13.7, the Borrower shall comply with the following covenants: Except as otherwise permitted under Section 10.4, the Borrower shall, and shall cause each other Specified Loan Party and each of its and their respective Subsidiaries to, and by its execution hereof the Parent Guarantor agrees that it shall and shall cause each of its Subsidiaries to, preserve and maintain its respective existence, rights, franchises, licenses and privileges in the jurisdiction of its incorporation or formation and qualify and remain qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization and where the failure to be so authorized and qualified could The Borrower shall, and shall cause each other Specified Loan Party and each of its and their respective Subsidiaries to, and by its execution hereof the Parent Guarantor agrees that it shall and shall cause each of its Subsidiaries to, comply with all Applicable Laws (including, without limitation, Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions), including the obtaining of all Governmental Approvals, where the failure to comply could reasonably be expected to have a Material Adverse Effect. The Borrower shall maintain in effect and enforce policies and procedures designed to ensure compliance with the Anti-Corruption Laws and applicable Sanctions by the Borrower, its Subsidiaries, their respective directors, officers, employees, Affiliates and agents and representatives of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from this Agreement. The Borrower shall, and shall cause each other Specified Loan Party to, and by its execution hereof the Parent Guarantor agrees that it shall and shall cause each of its Subsidiaries to, keep in all material respects all Properties owned or leased by it in good repair and working order, condition and appearance (ordinary wear and tear excepted), free of any structural defects and otherwise in a manner consistent with industry standards in the area in which such Property is located. its or their respective Subsidiaries to, and by its execution hereof the Parent carry on its respective principal business activities as described in Section 7.1(u) and not enter into any other principal line of business that is not otherwise engaged in by such Person as of the Agreement Date. maintain insurance (on a replacement cost basis) with financially sound and reputable insurance companies against such risks and in such amounts as is customarily maintained by similar businesses or as may be required by Applicable Law. The Borrower shall from time to time deliver to the Administrative Agent upon request a certificate of insurance, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby Such insurance shall, in any event, include terrorism coverage and all of the following: (A)    Insurance against loss to such Borrowing Base Properties on an “All Risk” policy form, covering insurance risks no less broad than those covered under a Special Multi Peril (SMP) policy form, which contains a Commercial ISO “Causes of Loss-Special Form,” in the then current form, and such other risks as Administrative Agent may reasonably require, in amounts equal to the full replacement cost of each of the Borrowing Base Properties including fixtures and equipment, the applicable Loan Party’s interest in leasehold improvements, and the cost of debris removal, with deductibles approved by Administrative Agent, except that any deductibles for any insurance covering damage by windstorm may be in amounts up to 5% of the value of the Borrowing Base Property insured; (B)    Business income insurance in amounts sufficient to pay during any period in which a Property may be damaged or destroyed, for a period of twelve (12) months; (i) at least 100% of projected Net Operating Income and (ii) all amounts (including, but not limited to, all taxes, assessments, utility charges and insurance premiums) required to be paid by any tenants of the Borrowing Base Property; (C)    During the making of any alterations or improvements to a Borrowing Base Property, carry or cause to be carried builder’s completed value risk insurance against “all risks of physical loss” for the full replacement cost of such Borrowing Base Property; (D)    Insurance against loss or damage by flood or mud slide in compliance with The Flood Disaster Protection Act of 1973, as amended from time to time, if any Property is now, or at any time while the Obligations or any portion thereof remains unpaid shall be, situated in any area which an appropriate Governmental Authority designates as a special flood hazard area, in amounts equal to the full replacement value of all above grade structures on such Borrowing Base Property, or as such lesser amounts as may be available under Federal flood insurance programs; (E)    Commercial general public liability insurance, with the location of the Borrowing Base Properties designated thereon, against death, bodily injury and property damage arising on, about or in connection with the Borrowing Base Properties, with applicable Subsidiary Guarantor listed as an insured, with such limits as Borrower or the applicable Subsidiary Guarantor may reasonably require (but in no event less than $5,000,000 per occurrence including any excess coverage; and (F)    Such other insurance, including, without limitation, earthquake and environmental coverages, relating to the Borrowing Base Properties and the uses and operation thereof as the Administrative Agent may, from time to time, reasonably require. each of its Subsidiaries to, pay and discharge when due (a) all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it, and (b) all lawful claims of materialmen, mechanics, carriers, warehousemen and landlords for labor, materials, supplies and rentals which, if unpaid, might by Applicable Law become a Lien on any properties of such Person that is not a Permitted Lien; provided, however, that (subject to Section 8.16) this Section shall not require the payment or discharge of any such tax, assessment, charge, levy or claim (i) that is being contested in good faith and by appropriate proceedings, (ii) with respect to which reserves in conformity with GAAP have been provided, (iii) if such charge, levy or claim does not constitute and is not secured by any choate Lien on any portion of any Property and no portion of any Property is in jeopardy of being sold, forfeited or lost during or as a result of such contest, (iv) neither Administrative Agent nor any Lender could become subject to any civil or criminal fine or penalty, in each case as a result of non-payment of such charge or claim and (v) such contest does not, and could not reasonably be expected to, result in a Material Adverse Effect. each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. The Borrower shall, and shall cause each other Specified Loan Party to, and by its execution hereof the Parent permit representatives of the Administrative Agent or any Lender to visit and inspect any of their respective properties, to examine and make abstracts from any of their respective books and records and to discuss their respective affairs, finances and accounts with their respective officers, employees and independent public accountants, all at such reasonable times during business hours and as often as may reasonably be requested and, as long as no Event of Default exists, with reasonable prior notice. The Borrower shall be obligated to reimburse the Administrative Agent and the Lenders for their costs and expenses incurred in connection with the exercise of their rights under this Section 8.7 only if such exercise occurs while a Default or Event of Default exists. The Borrower shall use the proceeds of Loans only for the general corporate purposes or in the ordinary course of business of the Borrower and its Subsidiaries, including the acquisition of Properties, repayment of Indebtedness, payment of Restricted Payments permitted under this Agreement, repurchases of common shares of the Parent Guarantor permitted under this Agreement, Investments not prohibited under any Loan Document, and capital expenditures. The Borrower shall not, and shall not permit any other Specified Loan Party or any of its or their respective Subsidiaries to, and by its execution hereby the Parent Guarantor agrees that it shall not and shall not permit any of its Subsidiaries to, use any part of such proceeds to purchase or carry, or to reduce or retire or refinance any credit incurred to purchase or carry, any margin stock (within the meaning of Regulation U or Regulation X of the Board of Governors of the Federal Reserve System) or to extend credit to others for the purpose of purchasing or carrying any such margin stock. The Borrower shall not request any Loan, shall not use, and shall ensure that its Subsidiaries and its or their respective directors, officers, employees and agents do not use the proceeds of any Loan (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws or (ii) in any manner that would result in the violation of any applicable Sanctions. comply with all Environmental Laws the failure with which to comply could reasonably be expected to have a Material Adverse Effect. The Borrower shall comply, and shall cause each other Specified Loan Party to comply, and by its execution hereof the Parent Guarantor agrees that it shall and shall cause each of its Subsidiaries to comply, and the Borrower shall use, and shall cause each other Specified Loan Party to use, and by its execution hereof the Parent Guarantor agrees that it shall and shall cause each of its Subsidiaries to use, commercially reasonable efforts to cause all other Persons occupying, using or present on its Properties to comply, with all Environmental Laws in all material respects. The Borrower shall, and shall cause each other Specified Loan Party to, and by its execution hereof the Parent Guarantor agrees that it shall and shall cause each of its Subsidiaries to, promptly take all actions and pay or arrange to pay all costs necessary for it and for its Properties to comply in all material respects with all Environmental Laws and all Governmental Approvals, including actions to remove and dispose of all Hazardous Materials and to clean up the Properties as required under Environmental Laws. The Borrower shall, and shall cause each other Specified Loan Party to, and by its of its Subsidiaries to, promptly take all actions necessary to prevent the imposition of any Liens on any of their respective properties arising out of or related to any Environmental Laws. Nothing in this Section shall impose any obligation or liability whatsoever on the Administrative Agent or any Lender. At the Borrower’s cost and expense and upon request of the Administrative Agent, the Borrower shall, and shall cause each other Specified Loan Party to, and by each of its Subsidiaries to, duly execute and deliver or cause to be duly executed and delivered, to the Administrative Agent such further instruments, documents and certificates, and perform or cause to be performed such further acts reasonably necessary, as determined by Administrative Agent in its reasonable judgment, to carry out the purposes of this Agreement and the other Loan Documents. By its execution hereof, the Parent Guarantor agrees to maintain its status and elect to be treated as a REIT. By its execution hereof, the Parent Guarantor agrees to maintain at least one class of common shares of the Parent Guarantor having trading privileges on the New York Stock Exchange or NASDAQ. The Borrower shall cause each Subsidiary Guarantor and Operating Lessee to: (a)    operate each Borrowing Base Property in compliance with Applicable Law in all material respects; (b)    promptly perform and/or observe (or cause to be performed and/or observed) in all material respects the covenants and agreements required to be performed and observed by it under the Material Contracts to which it is a party and do all things necessary to preserve and to keep unimpaired their material rights thereunder; (c)    promptly notify the Administrative Agent of any material default under any Management Agreement or Franchise Agreement of which it is aware; (d)    maintain Inventory at the applicable Borrowing Base Property in amounts required to meet the standards from time to time required by the applicable Manager and Franchisor; and (e)    maintain all material Licenses for the applicable Borrowing Base Property in full force and effect and promptly comply with all conditions thereof. (a)    In the event that any Subsidiary Guarantor or Operating Lessee shall undertake any Renovations to a Borrowing Base Property pursuant to a PIP or otherwise, the Borrower shall (i) cause the same to be performed diligently and promptly and to be commenced, performed and completed within the time limits set forth in the PIP (if applicable); (b) cause to be obtained all governmental permits required for such Renovations; (c) cause such Renovations to be constructed, performed and completed in compliance, in all material respects, with Applicable Law and all applicable requirements of the Manager and Franchisor, in a good and workmanlike manner, with materials of high quality, free of defects, and in accordance with the plans and specifications therefor and the PIP (if applicable), without substantial deviation therefrom unless approved by the Manager or Franchisor that issued the PIP; (d) cause such Renovations to be constructed and completed free and clear of any mechanic's liens, materialman's liens and equitable liens (subject to Section 8.16); (e) pay or cause to be paid all costs of such Renovations when due; (f) fully pay and discharge, or cause to be fully paid and discharged, all claims for labor performed and material and services furnished in connection with such Renovations; and (g) promptly release and discharge, or cause to be released and discharged, all claims of stop notices, mechanic's liens, materialman's liens and equitable liens that may arise in connection with such Renovations (subject to Section 8.16). (b)    Borrower shall notify the Administrative Agent of any Major Renovations that are scheduled or planned for any Borrowing Base Property and shall, if requested by the Administrative Agent, promptly furnish or cause to be furnished to the Administrative Agent (i) copies of any plans and specifications, contracts and governmental permits for such Major Renovations, and (ii) upon substantial completion of such Major Renovations (A) a written statement or certificate executed by the architect designated or shown on the plans and specifications (or, if no architect has been retained, from the general contractor for such Major Renovations certifying, without qualification or exception, that such Major Renovations are substantially completed, (B) all required occupancy permit(s) for the Borrowing Base Property issued by the local government agency having jurisdiction and authority to issue same, and (C) such other evidence of lien free completion as the Administrative Agent deems satisfactory in its reasonable discretion. The Borrower shall not suffer or permit any mechanics’, suppliers’ or other Lien claims (including without limitation any Liens arising from environmental or other legal proceedings (“Proceedings”)) to be filed or otherwise asserted against any Borrowing Base Property. If a claim of lien is recorded which affects any Borrowing Base Property, the Borrower shall, within thirty (30) days of such recording, or within ten (10) days of the Administrative Agent’s demand, whichever occurs first: (a) pay and discharge, or cause to be paid and discharged, the claim of Lien; or (b) provide the Administrative Agent with other assurances (which may include a title insurance endorsement) which the Administrative Agent deems, in its sole and absolute discretion, to be satisfactory for the payment of such claim of Lien and for the full and continuous protection of the Administrative Agent and the Lenders from the effect of such lien. If any Proceedings are commenced seeking to enjoin or otherwise prevent or declare unlawful the use, occupancy, operation or maintenance of any Borrowing Base Property or any portion thereof, or if any other Proceedings are filed with respect to any Borrowing Base Property or any Loan Party, the Borrower shall give prompt notice thereof to the Administrative Agent and to the extent permitted by law and at the Borrower’s or such Loan Party’s sole expense, (i) cause the Proceedings to be vigorously contested in good faith and (ii) in the event of an adverse ruling or decision, prosecute all allowable appeals therefrom. Without limiting the generality of the foregoing, the Borrower shall, or shall cause the applicable Loan Party to, resist the entry or seek the stay of any temporary or permanent injunction that may be entered and use its best efforts to bring about a favorable and speedy disposition of all such Proceedings. Within a commercially reasonable period of time after any Loan Party acquires knowledge of or is given notice of a material defect in any Borrowing Base Property or any departure by any Loan Party from other requirements of this Agreement or the other Loan Documents, Borrower shall, or shall cause the applicable Specified Loan Party to, commence and continue with diligence to correct, or cause to be corrected, all such defects and departures. Upon any Loan Party acquiring knowledge of such defect or departure, the Borrower shall promptly advise the Administrative Agent in writing of such matter and the measures being taken to make such corrections, along with an estimate of the time of completion. The tangible Personal Property of each Subsidiary Guarantor and Operating Lessee used in connection with any Borrowing Base Property shall be located at such Borrowing Base Property and shall be kept free and clear of all Liens other than Permitted Liens, and Borrower shall, from time to time upon request by the Administrative Agent, furnish the Administrative Agent with evidence of such ownership satisfactory to the Administrative Agent, including searches of applicable public records. Without limitation of any other provision of the Loan Documents, the Borrower shall (a) cause the applicable Subsidiary Guarantor to perform its obligations under each Approved Ground Lease in accordance with the terms and provisions thereof; (b) promptly give notice to Administrative Agent of any event or occurrence that, with notice or passage of time or both, would constitute an event of default under any Approved Ground Lease; and (c) promptly furnish to Administrative Agent a copy of any notice given or received by any Loan Party pursuant to any Approved Ground Lease alleging any breach or default by either party thereunder. ARTICLE IX.     Information in the manner set forth in Section 13.7, the Borrower shall furnish to the Administrative Agent for distribution to each of the Lenders: As soon as available and in any event within forty-five (45) days after the end of each of the first, second and third fiscal quarters of the Parent Guarantor (commencing with the fiscal quarter ending March 31, 2015), the unaudited consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at the end of such period and the related unaudited consolidated statements of operations, stockholders’ equity and cash flows of the Parent Guarantor and its Subsidiaries for such period, setting forth in each case in comparative form the figures as of the end of and for the corresponding periods of the previous fiscal year, all of which shall be certified by the chief financial officer of the Parent Guarantor, in his or her opinion, to present fairly, in accordance with GAAP (subject to Section 1.2(a)), the consolidated financial position of the Parent Guarantor and its Subsidiaries as at the date thereof and the results of operations for such period (subject to normal year end audit adjustments). As soon as available and in any event within ninety (90) days after the end of each fiscal year of the Parent Guarantor (commencing with the fiscal year ending December 31, 2015), the audited consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of operations, stockholders’ equity and cash flows of the Parent Guarantor and its Subsidiaries for such fiscal year, setting forth in comparative form the figures as at the end of and for the previous fiscal year, all of which shall be certified by (a) the chief financial officer of the Parent Guarantor, in his or her opinion, to present fairly, in accordance with GAAP (subject to Section 1.2(a)), the financial position of the Parent Guarantor and its Subsidiaries as at the date thereof and the result of operations for such period and (b) Ernst & Young LLP or any other independent certified public accountants of recognized national standing acceptable to the Requisite Lenders, whose certificate shall be unqualified and in scope and substance satisfactory to the Requisite Lenders and who shall have authorized the Parent Guarantor to deliver such financial statements and certification thereof to the Administrative Agent and the Lenders pursuant to this Agreement. At the time the financial statements are furnished pursuant to the immediately preceding Sections 9.1 and 9.2, a certificate substantially in the form of Exhibit I (a “Compliance Certificate”) executed on behalf of the Borrower by a senior officer of the Borrower (a) setting forth as of the end of such quarterly accounting period or fiscal year, as the case may be, the calculations required to establish whether the Borrower was in compliance with the covenants contained in Section 10.1; and (b) stating that no Default or Event of Default exists, or, if such is not the case, specifying such Default or Event of Default and its nature, when it occurred and the steps being taken by the Borrower with respect to such event, condition or failure. (a)    Within ten (10) days of receipt thereof, copies of all reports, if any, submitted to the Parent Guarantor or its Board of Trustees by its independent public accountants including, without limitation, any management report; (b)    Within five (5) Business Days of the filing thereof, copies of all registration statements (excluding the exhibits thereto and any registration statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all other periodic reports which any Loan Party or any other Subsidiary shall file with the Securities and Exchange Commission (or any Governmental Authority substituted therefor) or any national securities exchange; (c)    Promptly upon the mailing thereof to the shareholders of the Parent Guarantor generally, copies of all financial statements, reports and proxy statements so mailed and promptly upon the issuance thereof copies of all press releases issued by the Parent Guarantor, the Borrower, any Subsidiary or any other Loan Party; (d)    [Reserved]; (e)    Within twenty-five (25) days after the end of each calendar quarter, an operating statement for each Borrowing Base Property, and for all Borrowing Base Properties on a consolidated basis, for the preceding calendar quarter (and for each month in such quarter), detailing the Gross Operating Revenues and Operating Expenses, along with the average daily rate, occupancy levels and revenue per available room for each Borrowing Base Property, certified as true, correct and complete by a senior officer of the Borrower, together with: (A) a comparison of the results for such quarter (and for each month in such quarter) with (1) the projections for such quarter (and for each month in such quarter) contained in the Approved Annual Budget and (2) the actual results for the same calendar quarter (and for each month in such quarter) in the immediately preceding calendar year; (B) an operating statement for the twelve-month period ending with such quarter; (C) an operating statement showing year-to-date results for the period ending with such quarter, together with a comparison of such operating statement with (1) the projections for such year-to-date period year-to-date period ending with the same calendar quarter in the immediately preceding calendar year; (D) budget reforecasts (showing year-to-date actual and remainder of year budget); and (E) a calculation of Adjusted NOI; (f)    Within twenty-five (25) days after the end of each calendar quarter, for each Borrowing Base Property, the most current Smith Travel Research STAR Report (or any successor thereto or substitute therefor reasonably acceptable to the Administrative Agent) available, comparing such Borrowing Base Property to its primary competitive set; (g)    No later than ninety (90) days after the beginning of each fiscal year of the Parent Guarantor, projected balance sheets, operating statements, profit and loss projections, sources and uses of cash statement and statements of EBITDA and Funds From Operations, for the Parent Guarantor and its Subsidiaries on a consolidated basis for such fiscal year, all itemized in reasonable detail. The foregoing shall be accompanied by pro forma calculations, together with detailed assumptions, required to establish whether or not the Parent Guarantor, the Borrower, and when appropriate their consolidated Subsidiaries (as applicable), will be in compliance with the covenants contained in Section 10.1 at the end of each fiscal quarter of such fiscal year; (h)    No later than thirty (30) days after the beginning of each fiscal year of the Borrower (i) the proposed annual operating budget for each Borrowing Base Property, which shall be subject to approval of the Administrative Agent (as so approved, with respect to each Borrowing Base Property, the “Approved Operating Budget”), and (ii) the proposed annual FF&E and capital budget for each Borrowing Base Property, which shall be subject to the approval of the Administrative Agent (as so approved, with respect to each Borrowing Base Property, the “Approved Capital Budget”); (i)    Within ninety (90) days following the end of each fiscal year of the Parent Guarantor, operating statements, current operating and capital budgets (on both an individual basis and a consolidated basis) for each Hotel Property of the Parent Guarantor and its Subsidiaries and a marketing plan for each Hotel Property; (j)    If and when any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Internal Revenue Code, a copy of such application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement which has resulted or could result in the imposition of a Lien or the posting of a bond or other security, a certificate of the controller of the Parent Guarantor setting forth details as to such occurrence and action, if any, which the Parent Guarantor or applicable member of the ERISA Group is required or proposes to take; (k)    To the extent any Loan Party or any Subsidiary of any Loan Party is aware of the same, prompt notice of the commencement of any proceeding or investigation by or before any Governmental Authority and any action or proceeding in any court or other tribunal or before any arbitrator against or in any other way relating adversely to, or adversely affecting, any Loan Party or any Subsidiary of any Loan Party or any of their respective properties, assets or businesses which, if determined or resolved adversely to such Person, could reasonably be expected to have a Material Adverse Effect, and prompt notice of the receipt of notice that any United States income tax returns of any Loan Party or any Subsidiary of any Loan Party are being audited; (l)    A copy of any amendment to the articles of incorporation, bylaws, partnership agreement or other similar organizational documents of any Loan Party within five (5) Business Days after the effectiveness thereof; (m)    Prompt notice of (i) any change in the senior management of the Parent Guarantor or the Borrower and (ii) any change in the business, assets, liabilities, financial condition, results of operations or business prospects of any Loan Party or any Subsidiary of any Loan Party which has had or could have a Material Adverse Effect; (n)    Prompt notice of the occurrence of any Default or Event of Default or any event which constitutes or which with the passage of time, the giving of notice, or otherwise, would constitute a default or event of default by any Loan Party under any Material Contract to which any such Person is a party or by which any such Person or any of its respective properties may be bound; (o)    Promptly upon any Loan Party entering into any Material Contract or any Tenant Lease, a copy thereof; (p)    Prompt notice of any order, judgment or decree (i) in excess of $250,000 having been entered against any Loan Party or any Subsidiary of any Loan Party or any of their respective properties or assets or (ii) in excess of $1,000,000 having been entered against any Subsidiary that is not a Loan Party or any of its properties or assets; (q)    Any notification of a material violation of any Applicable Law or any inquiry shall have been received by any Loan Party or any Subsidiary of any Loan Party from any Governmental Authority; (r)    Prompt notice of the acquisition, incorporation or other creation of any Subsidiary of any Loan Party, the purpose for such Subsidiary, the nature of the assets and liabilities thereof and whether such Subsidiary is an Eligible Subsidiary; (s)    Promptly upon the request of the Administrative Agent, evidence of the Parent Guarantor’s calculation of the Ownership Share with respect to a Subsidiary or an Unconsolidated Affiliate, such evidence to be in form and detail satisfactory to the Administrative Agent; (t)    Promptly, upon each request, such information regarding the Borrower as a Lender may require in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act; (u)    Promptly, and in any event within three (3) Business Days after the Borrower obtains knowledge thereof, the Borrower shall provide the Administrative Agent with written notice of the occurrence of any of the following: (i) any Loan Party or any Subsidiary of any Loan Party shall receive notice that any violation of or noncompliance with any Environmental Law has or may have been committed or is threatened; (ii) any Loan Party or any Subsidiary of any Loan Party shall receive notice that any administrative or judicial complaint, order or petition has been filed or other proceeding has been initiated, or is about to be filed or initiated against any such Person alleging any violation of or noncompliance with any Environmental Law or requiring any such Person to take any action in connection with the release or threatened release of Hazardous Materials; (iii) any Loan Party or any Subsidiary of any Loan Party shall receive any notice from a Governmental Authority or private party alleging that any such Person may be liable or responsible for any costs associated with a response to, or remediation or cleanup of, a release or threatened release of Hazardous Materials or any damages caused thereby; or (iv) any Loan Party or any Subsidiary of any Loan Party shall receive notice of any other fact, circumstance or condition that could reasonably be expected to form the basis of an environmental claim, and such notice(s), whether Material Adverse Effect; (v)    Within forty-five (45) days after the end of each calendar quarter, Borrower shall deliver to the Administrative Agent a report in form and substance reasonably satisfactory to the Administrative Agent summarizing the status of the compliance with and performance of the obligations under each PIP for any Borrowing Base Property, including in such report a statement of the amounts expended through the end of such quarter with respect to such PIP and amounts projected to be expended thereafter to complete the obligations under such PIP; (w)    Promptly upon request of the Administrative Agent, the Derivatives Termination Value in respect of any Specified Derivatives Contract from time to time outstanding; and (x)    From time to time and promptly upon each request, such data, certificates, reports, statements, opinions of counsel, documents or further information regarding any Property or the business, assets, liabilities, financial condition, results of operations or business prospects of any Loan Party or any Subsidiary of any Loan Party as the Administrative Agent or any Lender may reasonably request. (a)    Documents required to be delivered pursuant to the Loan Documents shall be delivered by electronic communication and delivery, including, the Internet, e-mail or intranet websites to which the Administrative Agent and each Lender have access (including a commercial, third-party website such as www.Edgar.com <http://www.Edgar.com> or a website sponsored or hosted by the Administrative Agent or the Borrower) provided that (A) the foregoing shall not apply to notices to any Lender pursuant to Article II and (B) the Lender has not notified the Administrative Agent or Borrower that it cannot or does not want to receive electronic communications. The Administrative Agent or the Borrower may, in its electronic delivery pursuant to procedures approved by it for all or particular notices or communications. Documents or notices delivered electronically shall be deemed to have been delivered twenty-four (24) hours after the date and time on which the Administrative Agent or the Borrower posts such documents or the documents become available on a commercial website and the Administrative Agent or Borrower notifies each Lender of said posting and provides a link thereto provided if such notice or other communication is not sent or posted during the normal business hours of the recipient, said posting date and time shall be deemed to have commenced as of 9:00 a.m. on the opening of business on the next Business Day for the recipient. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the certificate required by Section 9.3 to the Administrative Agent and shall deliver paper copies of any documents to the Administrative Agent or to any Lender that requests such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. Except for the certificates required by Section 9.3, the Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents delivered electronically, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery. Each Lender shall be solely responsible for requesting delivery to it of paper copies and maintaining its paper or electronic documents. (b)    Documents required to be delivered pursuant to Article II may be delivered electronically to a website provided for such purpose by the Administrative Agent pursuant to the procedures provided to the Borrower by the Administrative Agent. each of its Subsidiaries to, cooperate, with the Administrative Agent in connection with the publication of certain materials and/or information provided by or on behalf of the Borrower or the other Loan Parties. Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of the Borrower or the other Loan Parties to the Administrative Agent and the Lenders (collectively, “Information Materials”) pursuant to this Article and shall designate Information Materials (a) that are either available to the public or not material with respect to the Borrower, the other Loan Parties and their Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (b) that are not Public Information as “Private Information”. Notwithstanding the foregoing, each Lender who does not wish to receive Private Information agrees to cause at least one individual at or on behalf of such Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of any website provided pursuant to Section 9.5 in order to enable such Lender or its delegate, in accordance with such Lender’s compliance procedures and Applicable Law, including United States federal and state securities laws, to make reference to Information Materials that are not made available through the “Public Side Information” portion of such website provided pursuant to Section 9.5 and that may contain material non‑public information with respect to the Borrower or its securities for purposes of United States federal and state securities laws. The Patriot Act and federal regulations issued with respect thereto require all financial institutions to obtain, verify and record certain information that identifies individuals or business entities which open an “account” with such financial institution. Consequently, a Lender (for itself and/or as Administrative Agent for all Lenders hereunder) may from time-to-time request, and the Borrower shall, and shall cause each other Loan Party and Subsidiaries to, and by its execution hereof the Parent Guarantor agrees that it shall, provide to such Lender, such Loan Party’s or Subsidiary’s name, address, tax identification number and/or such other identification information as shall be necessary for such Lender to comply with federal law, including, without limitation, applicable “know your customer” and Anti-Money Laundering Laws. An “account” for this purpose may include, without limitation, a deposit account, cash management service, a transaction or asset account, a credit account, a loan or other extension of credit, and/or other financial services product. in the manner set forth in Section 13.7, the Borrower shall, and by its execution hereof the Parent Guarantor agrees that it shall (as applicable), comply with the following covenants: (a)    Minimum Tangible Net Worth. Tangible Net Worth shall not at any time be less than the sum of (i) $959,835,000  plus (ii) 75% of the Net Proceeds of all Equity Issuances effected at any time after December 31, 2016 by the Parent Guarantor or any of its Subsidiaries to any Person other than the Parent Guarantor or any Subsidiary. (b)    Leverage Ratios. (i)    The Leverage Ratio shall at all times be less than 60%. (ii)    The Unencumbered Leverage Ratio shall at all times be less than 60%. (iii)    The Secured Leverage Ratio shall at all times be less than 45%. (c)    Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio shall not at any time be less than 1.50 to 1.00. (d)    Permitted Investments. At no time from and after the Effective Date shall any of the Loan Parties or any of their Subsidiaries make an Investment in or otherwise own the following items which would cause the aggregate value of such holdings of such Persons to exceed the following percentages of Total Asset Value at any such time: (A)    Equity Interests in Persons (other than consolidated Subsidiaries) such that the aggregate Book Value of such Equity Interests exceeds 15% of Total Asset Value; (B)    Indebtedness secured by Mortgages in favor of the Parent Guarantor or any of its Subsidiaries such that the aggregate Book Value of such Indebtedness exceeds 10% of Total Asset Value; (C)    Development/Redevelopment Properties having a value (based on the total budgeted construction costs for restoration or redevelopment) that exceeds in the aggregate 15% of Total Asset Value; (D)    Unimproved land such that the aggregate Book Value of all such unimproved land exceeds 2.5% of Total Asset Value; or (E)    Properties undergoing Major Renovations with aggregate budgeted renovation costs that exceed 15% of Total Asset Value. In addition to the foregoing limitations, the aggregate Book Value (or, in the case of items (C) and (E), a value (based on the total budgeted construction or renovation costs)) of items (A), (B), (C), (D) and (E) above from and after the Effective Date shall not exceed 25% of Total Asset Value. (e)    Dividends and Other Restricted Payments. If a Default or an Event of Default under Section 11.1(a), 11.1(e) or 11.1(f) shall exist or, if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 11.2(a), neither Borrower nor any Specified Loan Party nor any of their respective Subsidiaries, and by its execution hereof the Parent Guarantor agrees that neither it nor any of its Subsidiaries (other than, in the case of any of the foregoing, any Eligible Subsidiaries), shall directly or indirectly declare or make, or incur any liability to make, any Restricted Payments. In all other circumstances except as described in the immediately preceding sentence, neither Borrower nor any Specified Loan Party nor any of their respective Subsidiaries, and by its execution hereof the Parent Guarantor agrees that neither it nor any of its Subsidiaries (other than, in the case of any of the foregoing, any Eligible Subsidiaries) shall declare or make, or incur any liability to make, any Restricted Payments, except that: (A)    Any Subsidiary may make cash distributions to any Eligible Subsidiary or the Borrower and the Borrower may pay cash dividends to the Parent Guarantor and other holders of partnership interests in the Borrower with respect to any period of four (4) fiscal quarters to the extent necessary for the Parent Guarantor to distribute, and the Parent Guarantor may so distribute, Preferred Dividends or cash dividends or distributions to holders of its Preferred Stock or common Equity Interests in an aggregate amount not to exceed the greatest of (i) 90% of Funds From Operations, (ii) the amount required for the Parent Guarantor to maintain its status as a REIT (including the right to distribute 100% of net capital gain) under Sections 856 through 860 of the Internal Revenue Code, and (iii) the amount necessary for the Parent Guarantor to avoid income or excise tax under the Internal Revenue Code; (B)    As long as (i) no Event of Default exists or would result therefrom and (ii) the Borrower is, and upon giving effect to any of the following Restricted Payments shall continue to be, in compliance with all covenants set forth in this Agreement (including those set forth in this Section 10.1) on a pro forma basis as of the date of the most recently delivered Compliance Certificate, the Parent Guarantor, the Borrower and any Subsidiary, each as applicable, may make cash payments: (1)    to redeem Equity Interests in the Borrower or any Subsidiary in accordance with the terms of the charter, articles of incorporation or by-laws, operating agreement, partnership agreement or other organizational document of such entity; (2)    of Preferred Dividends as required to be paid to holders of Preferred Stock; (3)    to purchase Equity Interests from employees of the Parent Guarantor, the Borrower or any Subsidiary in amounts required to satisfy their withholding tax obligations in respect of non-cash compensation received by such employees in respect of such employment; (4)    to purchase the interests of joint venture partners of the Borrower or its Subsidiaries; (5)    to the extent contractually required to be made to holders of minority interests in non-Wholly Owned Subsidiaries; (6)    to repurchase or redeem common Equity Interests or Preferred Stock; (7)    to otherwise make any Restricted Payment arising in the ordinary course of business; and (8)    to any Eligible Subsidiary or the Borrower or the Parent Guarantor, as applicable, in amounts sufficient to permit the recipient of such funds to make any of the payments permitted under the foregoing clauses of this Section 10.1(e)(B). Notwithstanding the foregoing, the aggregate amount paid for all purchases or redemptions of common shares or other equivalent common Equity Interests of the Parent Guarantor shall not exceed $200,000,000. (f)    Unencumbered Implied Debt Service Coverage Ratio. The Unencumbered Implied Debt Service Coverage Ratio shall at all times be greater than 1.25 to 1.00. (g)    Minimum Borrowing Base Property Requirements. The Borrower shall not at any time permit the Borrowing Base Pool to include fewer than seven (7) Eligible Properties, and the Borrower shall not permit the Unencumbered Borrowing Base Asset Value to be less than $500,000,000. The Borrower shall not, and shall not permit any other Specified Loan Party or any of its or their respective Subsidiaries to, and by its execution hereof the Parent Guarantor agrees that it shall not and shall not permit any of its Subsidiaries to, (a) create, assume, incur, permit or suffer to exist any Lien on (i) any Borrowing Base Property, except for Permitted Liens, (ii) any direct or indirect ownership interest in any Subsidiary Guarantor or Operating Lessee, except for Permitted Liens and except for interests in Borrower not owned by Parent Guarantor or (b) permit any Borrowing Base Property or any direct or indirect ownership interest of the Borrower or any Person owning a Borrowing Base Property to be subject to a Negative Pledge. By its execution hereof, the Parent Guarantor agrees that it shall not create, assume, incur, permit or suffer to exist any Lien on the Parent Guarantor’s ownership interests in the Borrower or cause or permit its ownership interests in the Borrower to be subject to a Negative Pledge. Parent Guarantor agrees that it shall not and shall not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Loan Party or any Subsidiary of any Loan Party to: (a) pay dividends or make any other distribution on any Loan Party’s or Subsidiary’s capital stock or other equity interests owned by the Borrower or any other Subsidiary; (b) pay any Indebtedness owed to the Parent Guarantor, the Borrower or any other Subsidiary; (c) make loans or advances to the Parent Guarantor, the Borrower or any other Subsidiary; or (d) transfer any of its property or assets to the Borrower or any other Subsidiary; other than (i) with respect to clauses (a) – (d) those encumbrances or restrictions contained in any Loan Document, (ii) with respect to clauses (a) – (d), customary encumbrances or restrictions on any Subsidiary (other than a Loan Party) in instruments evidencing or securing Indebtedness of such Subsidiary otherwise permitted under this Agreement or (iii) with respect to clause (d), customary provisions restricting assignment of any agreement entered into by the Borrower, any other Loan Party or any Subsidiary of any Loan Party in the ordinary course of business. Except as otherwise permitted below, the Borrower shall not, and shall not permit any other Specified Loan Party or any of its or their respective shall not and shall not permit any of its Subsidiaries to, (a) enter into any transaction of merger or consolidation; (b) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire a Substantial Amount of the assets of, or make an Investment of a Substantial Amount in, any other Person; provided, however, that: (i)    any Subsidiary may merge with a Loan Party (other than an Operating Lessee) so long as such Loan Party is the survivor or may merge with an Affiliate (which is not a Loan Party) of such Subsidiary if such Affiliate shall concurrently with such merger become a Loan Party and execute such documents in connection therewith as shall be reasonably necessary; (ii)    any Subsidiary may sell, transfer or dispose of its assets to a Loan Party (other than an Operating Lessee); (iii)    the Parent Guarantor, the Borrower or any Subsidiary that is not a Loan Party may, directly or indirectly, (A) acquire (whether by purchase, acquisition of Equity Interests of a Person, or as a result of a merger or consolidation) a Substantial Amount of the assets of, or make an Investment of a Substantial Amount in, any other Person and (B) sell, lease or otherwise transfer, whether by one or a series of transactions, a Substantial Amount of assets (including capital stock or other securities of Subsidiaries) to any other Person, so long as, in each case, (1) the Borrower shall have given the Administrative Agent and the Lenders at least thirty (30) days prior written notice of such consolidation, merger, acquisition, Investment, sale, lease or other transfer; (2) immediately prior thereto, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence, including, without limitation, a Default or Event of Default resulting from a breach of Section 10.1; (3) in the case of a consolidation or merger to which the Parent Guarantor or the Borrower is a party, the Parent Guarantor or the Borrower shall be the survivor thereof and (4) at the time the Borrower gives notice pursuant to clause (1) of this subsection, the Borrower shall have delivered to the Administrative Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis, evidencing the continued compliance by the Loan Parties with the terms and conditions of this Agreement and the other Loan Documents, including without limitation, the financial covenants contained in Section 10.1, after giving effect to such consolidation, merger, acquisition, Investment, sale, lease or other transfer; and (iv)    the Loan Parties and their Subsidiaries may (except as otherwise provided in the Loan Documents with respect to Borrowing Base Properties) lease and sublease their respective assets, as lessor or sublessor (as the case may be), in the ordinary course of their business. Further, the Borrower shall not, and shall not permit any other Specified Loan Party or any of its or their respective Subsidiaries, to, and by its execution hereof the Parent Guarantor agrees that it shall not and shall not permit any of its Subsidiaries to, enter into any sale leaseback transactions or other transaction by which such Person shall remain liable as lessee (or the economic equivalent thereof) of any real or personal property that it has sold or leased to another Person. Subsidiaries to, permit any of its respective assets to become or be deemed to be “plan assets” within the meaning of ERISA and the regulations promulgated thereunder for purposes of ERISA and the Internal Revenue Code. Subsidiaries to, change its fiscal year from that in effect as of the Agreement Date. The Borrower shall not, and shall not permit any other Specified Loan Party to, and by its execution hereof the Parent Guarantor agrees that it shall not, amend, supplement, restate or otherwise modify in any material respect its charter, articles of incorporation or by-laws, operating agreement, partnership agreement or other organizational document without the prior written consent of the Administrative Agent (which shall not be unreasonably withheld) unless such amendment, supplement, restatement or other modification is (a) required under or as a result of the Internal Revenue Code or other Applicable Law, (b) required to maintain the Parent Guarantor’s status as a REIT, or (c) made to reflect changes necessary in connection with transactions permitted by the provisions of this Agreement (such as an issuance of Preferred Stock, or an issuance of Equity Interests in the Borrower or any of its Subsidiaries in connection with the acquisition of assets) and which do not adversely affect the rights of the Administrative Agent or the Lenders under this Agreement or the Loan Documents. (a)    The Borrower shall not permit any other Specified Loan Party to, and by its execution hereof the Parent Guarantor agrees that it shall not, do any of the following without the Administrative Agent’s prior written consent: (i) enter into, surrender or terminate any Material Contract (other than the Term Loan Agreement and the “Loan Documents” as defined therein); (ii) reduce or extend the term of, increase the charges or fees payable by such Loan Party under, decrease the charges or fees payable to such Loan Party under, or otherwise modify or amend in any material respect, any Material Contract (other than (x) the Term Loan Agreement and the “Loan Documents” as defined therein, (y) an Approved Ground Lease, with respect to which the provisions of subsection (b) shall apply, or (z) organizational documents, with respect to which the provisions of Section 10.7 shall apply); or (iii) terminate, or modify or amend, in any material respect, any Operating Lease of a Borrowing Base Property. (b)    The Borrower shall not cause or permit (i) any amendment or modification of any Approved Ground Lease without the prior written consent of Administrative Agent (which shall not be unreasonably withheld, construed or delayed) or (ii) the termination of any Approved Ground Lease. (a)    The Borrower (i) shall not, and shall not permit any other Specified Loan Party to, and by its execution hereof the Parent Guarantor agrees that it shall not, assume, create, incur or suffer to exist any Indebtedness to the Parent Guarantor or any of its Subsidiaries unless such Indebtedness is fully subordinated to the Obligations on terms satisfactory to the Administrative Agent and (ii) shall not permit any Subsidiary Guarantor or Operating Lessee to create, assume, incur or suffer to exist any Indebtedness other than (A) as permitted in clause (i), (B) the Obligations and the Guaranteed Obligations, (C) trade payables and equipment leases that are normal and customary both as to their terms and as to their amounts, (D) Guaranties of Franchise Agreements or Management Agreements entered into in the ordinary course of business and (E) the “Obligations” (under and as defined in the Term Loan Agreement) and any Guarantees thereof. (b)    Except as permitted pursuant to Section 10.1(e) hereof, the Borrower shall not, and shall not permit any other Specified Loan Party or any of its or their respective Subsidiaries to, and by its execution hereof the Parent Guarantor agrees that it shall not and shall not permit any of its Subsidiaries to, prepay any principal of, or accrued interest on, any Subordinated Debt or otherwise make any voluntary or optional payment with respect to any principal of, or accrued interest on, any Subordinated Debt prior to the originally scheduled maturity date thereof or otherwise redeem or acquire for value any Subordinated Debt. Further, the Borrower shall not, and shall not permit any other Specified Loan Party or any of its or their respective Subsidiaries to, and by its execution its Subsidiaries to, amend or modify, or permit the amendment or modification of, any agreement or instrument evidencing any Subordinated Debt where such amendment or modification provides for the following or which has any of the following effects: (i)    increases the rate of interest accruing on such Subordinated Debt; (ii)    increases the amount of any scheduled installment of principal or interest, or shortens the date on which any such installment or principal or interest becomes due; (iii)    shortens the final maturity date of such Subordinated Debt; (iv)    increases the principal amount of such Subordinated Debt; (v)    amends any financial or other covenant contained in any document or instrument evidencing any Subordinated Debt in a manner which is more onerous to the Borrower, such Loan Party or such Subsidiary or which requires the Borrower, such Loan Party or such Subsidiary to improve its financial performance; (vi)    provides for the payment of additional fees or the increase in existing fees; and/or (vii)    otherwise could reasonably be expected to be adverse to the interests of the Administrative Agent or the Lenders. The Borrower shall not permit to exist or enter into, and will not permit any and by its execution hereof the Parent Guarantor agrees that it shall not and shall not permit any of its Subsidiaries to, permit to exist or enter into, any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate (other than any Loan Party or any other Subsidiary), except (a) as set forth on Schedule 7.1(s) or (b) transactions in the ordinary course of and pursuant to the reasonable requirements of the business of the Borrower or such Loan Party or Subsidiary and upon fair and reasonable terms which are no less favorable to the Borrower or such Loan Party or Subsidiary than would be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate. Notwithstanding the foregoing, no payments may be made with respect to any items set forth on such Schedule 7.1(s) if a Default or Event of Default exists or would result therefrom. any other Person to, use, generate, discharge, emit, manufacture, handle, process, store, release, transport, remove, dispose of or clean up any Hazardous Materials on, under or from the Borrowing Base Properties in material violation of any Environmental Law or in a manner that could reasonably be expected to lead to any material environmental claim or pose a material risk to human health, safety or the environment. Nothing in this Section shall impose any obligation or liability whatsoever on the Administrative Agent or any Lender. The Borrower shall not, and shall not permit any other Loan Party or any Subsidiary of any Loan Party to enter into or become obligated in respect of, Derivatives Contracts, other than Derivatives Contracts entered into by the Borrower, or such Loan Party or Subsidiary in the ordinary course of business and which establish an effective hedge in respect of liabilities, commitments or assets held or reasonably anticipated by the Borrower or such Loan Party or Subsidiary. ARTICLE XI.     Default Each of the following shall constitute an Event of Default, whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of Applicable Law or pursuant to any judgment or order of any Governmental Authority: (a)    Default in Payment. The Borrower shall fail to pay when due under this Agreement or any other Loan Document (whether upon demand, at maturity, by reason of acceleration or otherwise) the principal of, or any interest on, any of the Loans, or shall fail to pay any of the other payment Obligations owing by the Borrower under this Agreement, any other Loan Document or the Fee Letter, or any other Loan Party shall fail to pay when due any payment obligation owing by such Loan Party under any Loan Document to which it is a party. (b)    Default in Performance. (i)    The Borrower or any Loan Party shall fail to perform or observe any term, covenant, condition or agreement on its part to be performed or observed and contained in Article IX and such failure shall continue for a period of five (5) days; or (ii)    The Borrower or any Loan Party shall fail to perform or observe any term, covenant, condition or agreement on its part to be performed or observed and contained in Section 8.1 (with respect to the existence of any Loan Party), Section 8.8 or Article X; or (iii)    The Borrower or any Loan Party shall fail to perform or observe any term, covenant, condition or agreement contained in this Agreement or any other Loan Document to which it is a party and not otherwise mentioned in this Section and such failure shall continue for a period of thirty (30) days after the earlier of (x) the date upon which any Loan Party obtains knowledge of such failure or (y) the date upon which the Borrower has received written notice of such failure from the Administrative Agent; provided, however, that: (i) if such default is not susceptible of cure within such thirty (30)-day period, such thirty (30)-day period shall be extended to a ninety (90)-day period, but only if (A) such Loan Party shall commence such cure within such thirty (30)-day period and shall thereafter prosecute such cure to completion, diligently and without delay, and (B) no other Default or Event of Default shall have occurred; and (ii) the grace period provided in this section shall in no event apply to any default relating to any other Default for which this Agreement or the applicable Loan Document specifically provides that no period of grace shall be applicable; or (c)    Misrepresentations. Any written statement, representation or warranty made or deemed made by or on behalf of the Borrower or any other Loan Party under this Agreement or under any other Loan Document, or any amendment hereto or thereto, or in any other writing or statement at any time furnished by, or at the direction of, the Borrower or any other Loan Party to the Administrative Agent or any Lender, shall at any time prove to have been incorrect or misleading in any material respect when furnished or made or deemed made. (d)    Indebtedness Cross-Default. (i)    Any Loan Party or any Subsidiary of any Loan Party shall fail to make any payment when due and payable in respect of any Indebtedness (other than the Loans) having an aggregate outstanding principal amount (or, in the case of any Derivatives Contract, having, without regard to the effect of any close-out netting provision, a Derivatives Termination Value) equal to or exceeding $15,000,000 (“Material Indebtedness”); or (ii)    (x) The maturity of any Material Indebtedness shall have been accelerated in accordance with the provisions of any indenture, contract or instrument evidencing, providing for the creation of or otherwise concerning such Material Indebtedness or (y) any Material Indebtedness shall have been required to be prepaid, repurchased, redeemed or defeased prior to the stated maturity thereof; (iii)    Any other event shall have occurred and be continuing which, with or without the passage of time, the giving of notice, or otherwise, would permit any holder or holders of any Material Indebtedness, any trustee or agent acting on behalf of such holder or holders or any other Person, to accelerate the maturity of any Material Indebtedness or require any Material Indebtedness to be prepaid, repurchased, redeemed or defeased prior to its stated maturity; (iv)    There occurs an “Event of Default” under and as defined in any Derivatives Contract as to which the Borrower, any Loan Party or any other Subsidiary of the Parent Guarantor is a “Defaulting Party” (as defined therein), or there occurs an “Early Termination Date” (as defined therein) in respect of any Specified Derivatives Contract as a result of a “Termination Event” (as defined therein) as to which the Parent, the Borrower or any of its Subsidiaries is an “Affected Party” (as defined therein); or (v)    There occurs an “Event of Default” under and as defined in the Term Loan Agreement. (e)    Voluntary Bankruptcy Proceeding. Any Loan Party or any Subsidiary of any Loan Party shall: (i) commence a voluntary case under the Bankruptcy Code or other federal bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to take advantage of any other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; (iii) consent to, or fail to contest in a timely and appropriate manner, any petition filed against it in an involuntary case under such bankruptcy laws or other Applicable Laws or consent to any proceeding or action described in the immediately following Section 11.1(f); (iv) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign; (v) admit in writing its inability to pay its debts as they become due; (vi) make a general assignment for the benefit of creditors; (vii) make a conveyance fraudulent as to creditors under any Applicable Law; or (viii) take any corporate, partnership or other organizational action for the purpose of effecting any of the foregoing. (f)    Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced against any Loan Party or any Subsidiary of any Loan Party in any court of competent jurisdiction seeking: (i) relief under the Bankruptcy Code or other federal bankruptcy laws (as now or hereafter in effect) or under any other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up, or composition or adjustment of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of such Person, or of all or any substantial part of the assets, domestic or foreign, of such Person, and in the case of either clause (i) or (ii) such case or proceeding shall continue undismissed or unstayed for a period of sixty (60) consecutive days, or an order granting the relief requested in such case or proceeding (including, but not limited to, an order for relief under such Bankruptcy Code or such other federal bankruptcy laws) shall be entered. (g)    Revocation of Loan Documents. Any Loan Party shall (or shall attempt to) disavow, revoke or terminate any Loan Document to which it is a party or the Fee Letter or shall otherwise challenge or contest in any action, suit or proceeding in any court or before any Governmental Authority the validity or enforceability of any Loan Document or the Fee Letter. (h)    Judgment. A judgment or order for the payment of money shall be entered against any Loan Party or any Subsidiary of any Loan Party by any court or other tribunal and (i) such judgment or order shall continue for a period of twenty (20) days without being paid, stayed or dismissed through appropriate appellate proceedings and (ii) either (A) the amount for which insurance has not been acknowledged in writing by the applicable insurance carrier (or the amount as to which the insurer has denied liability) exceeds, individually or together with all other such judgments or orders entered against such Persons, $15,000,000 or (B) such judgment or order could reasonably be expected to have a Material Adverse Effect. (i)    Attachment. A warrant, writ of attachment, execution or similar process shall be issued against any property of any Loan Party or any Subsidiary of any Loan Party, which exceeds, individually or together with all other such warrants, writs, executions and processes, $15,000,000 in amount and such warrant, writ, execution or process shall not be paid, discharged, vacated, stayed or bonded for a period of twenty (20) days. (j)    ERISA. Any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating in excess of $15,000,000 which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur withdrawal liability or a current payment obligation in excess of $15,000,000. (k)    Loan Documents. An Event of Default (as defined therein) shall occur under any of the other Loan Documents; (l)    Change of Control/Change in Management. (i)    Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be deemed to have “beneficial ownership” of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 19.9% of the total voting power of the then outstanding voting stock of the Parent Guarantor; or (ii)    During any period of twelve (12) consecutive months ending after the Agreement Date, individuals who at the beginning of any such 12-month period constituted the Board of Trustees of the Parent Guarantor (together with any new trustees whose election by such Board or whose nomination for election by the shareholders of the Parent Guarantor was approved by a vote of a majority of the trustees then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Trustees of the Parent Guarantor then in office; or (iii)    The Parent Guarantor shall cease to be the sole general partner of the Borrower or shall cease to own at least 80.1% of the partnership interests in the Borrower; or (iv)    Any Subsidiary Guarantor or Operating Lessee shall cease to be an Eligible Subsidiary of the Borrower. (m)    Damage; Strike; Casualty. Any material damage to, or loss, theft or destruction of, any Borrowing Base Property, whether or not insured, any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty which causes, for more than thirty (30) consecutive days beyond the coverage period of any applicable business interruption insurance, the cessation or substantial curtailment of revenue producing activities of the Borrower or any other Loan Party. Upon the occurrence of an Event of Default the following provisions shall apply: (a)    Acceleration; Termination of Facilities. (i)    Automatic. Upon the occurrence of an Event of Default specified in Sections 11.1(e) or 11.1(f), (1) (A) the principal of, and all accrued interest on, the Loans and the Notes at the time outstanding, and (B) all of the other Obligations of the Borrower, including, but not limited to, the other amounts owed to the Lenders and the Administrative Agent under this Agreement, the Notes or any of the other Loan Documents shall become immediately and automatically due and payable by the Borrower without presentment, demand, protest, or other notice of any kind, all of which are expressly waived by the Borrower, and (2) the Commitments and the obligation of the Lenders to make Loans hereunder shall all immediately and automatically terminate. (ii)    Optional. If any other Event of Default shall exist, the Administrative Agent may, and at the direction of the Requisite Lenders shall: (1) declare (A) the principal of, and accrued interest on, the Loans and the Notes at the time outstanding and (B) all of the other Obligations, including, but not limited to, the other amounts owed to the Lenders and the Administrative Agent under this Agreement, the Notes or any of the other Loan Documents to be forthwith due and payable, whereupon the same shall immediately become due and payable without expressly waived by the Borrower, and (2) terminate the Commitments and the obligation of the Lenders to make Loans hereunder. (b)    Loan Documents. The Requisite Lenders may direct the Administrative Agent to, and the Administrative Agent if so directed shall, exercise any and all of its rights under any and all of the other Loan Documents. (c)    Applicable Law. The Requisite Lenders may direct the Administrative Agent to, and the Administrative Agent if so directed shall, exercise all other rights and remedies it may have under any Applicable Law. (d)    Appointment of Receiver. To the extent permitted by Applicable Law, the Administrative Agent and the Lenders shall be entitled to the appointment of a receiver for the assets and properties of the Borrower and its Subsidiaries, without notice of any kind whatsoever and without regard to the adequacy of any security for the Obligations or the solvency of any party bound for its payment, to take possession of all or any portion of the property and/or the business operations of the Borrower and its Subsidiaries and to exercise such power as the court shall confer upon such receiver. (e)    Remedies in Respect of Specified Derivatives Contracts. Notwithstanding any other provision of this Agreement or other Loan Document, each Specified Derivatives Provider shall have the right, with prompt notice to the Administrative Agent, but without the approval or consent of or other action by the Administrative Agent or the Lenders, and without limitation of other remedies available to such Specified Derivatives Provider under contract or Applicable Law, to undertake any of the following: (a) to declare an event of default, termination event or other similar event under any Specified Derivatives Contract and to create an “Early Termination Date” (as defined therein) in respect thereof, (b) to determine net termination amounts in respect of any and all Specified Derivatives Contracts in accordance with the terms thereof, and to set off amounts among such contracts, (c) to set off or proceed against deposit account balances, securities account balances and other property and amounts held by such Specified Derivatives Provider and (d) to prosecute any legal action against the Borrower, any Loan Party or other Subsidiary to enforce or collect net amounts owing to such Specified Derivatives Provider pursuant to any Specified Derivatives Contract. None of the Administrative Agent or any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other party or against or in payment of any or all of the Guaranteed Obligations. To the extent that any Loan Party makes a payment or payments to the Administrative Agent and/or any Lender, or the Administrative Agent and/or any Lender enforce their security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such recovery, the Guaranteed Obligations, or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be If an Event of Default exists and maturity of any of the Guaranteed Obligations has been accelerated or the Maturity Date has occurred, all payments received by the Administrative Agent under any of the Loan Documents, in respect of any principal of or interest on the Guaranteed Obligations or any other amounts payable by the Borrower hereunder or thereunder, shall be applied in the following order and priority: (a)    to payment of that portion of the Guaranteed Obligations constituting fees, indemnities, expenses and other amounts, including attorney fees, payable to the Administrative Agent in its capacity as such; (b)    to payment of that portion of the Guaranteed Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders under the Loan Documents, including attorney fees, ratably among the Lenders in proportion to the respective amounts described in this clause (b) payable to them; (c)    to payment of that portion of the Guaranteed Obligations constituting accrued and unpaid interest on the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause (c) payable to them; (d)    to payment of that portion of the Guaranteed Obligations constituting unpaid principal of the Loans and payment obligations then owing under Specified Derivatives Contracts, ratably among the Lenders and the Specified Derivatives Providers in proportion to the respective amounts described in this clause (d) payable to them; and (e)    the balance, if any, after all of the Guaranteed Obligations (other than any contingent obligation for which no claim has been made) have been indefeasibly paid in full, to the Borrower or as otherwise required by Applicable Law. Notwithstanding the foregoing, Guaranteed Obligations arising under Specified Derivatives Contracts shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Specified Derivatives Provider. Each Specified Derivatives Provider not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article XII for itself and its Affiliates as if a “Lender” party hereto. If at any time after acceleration of the maturity of the Loans and the other Obligations, the Borrower shall pay all arrears of interest and all payments on account of principal of the Obligations which shall have become due otherwise than by acceleration (with interest on principal and, to the extent permitted by Applicable Law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and Defaults (other than nonpayment of principal of and accrued interest on the Obligations due and payable solely by virtue of acceleration) shall become remedied or waived to the satisfaction of the Requisite Lenders (or, if the matter that resulted in such Event of Default may be waived only by all of Lenders, then waived to the satisfaction of all of the Lenders), then by written notice to the Borrower, the Requisite Lenders may elect, in the sole discretion of such Requisite Lenders, to rescind and annul the acceleration and its consequences. The provisions of the preceding sentence are intended merely to bind all of the Lenders to a decision which may be made at the election of the Requisite Lenders, and are not intended to benefit the Borrower and do not give the Borrower the right to require the Lenders to rescind or annul any acceleration hereunder, even if the conditions set forth herein are satisfied. If the Borrower or any other Loan Party shall fail to perform any covenant, duty or agreement contained in any of the Loan Documents, the Administrative Agent may perform or attempt to perform such covenant, duty or agreement on behalf of the Borrower or such Loan Party after the expiration of any cure or grace periods set forth herein. In such event, the Borrower shall, at the request of the Administrative Agent, promptly pay any amount reasonably expended by the Administrative Agent in such performance or attempted performance to the Administrative Agent, together with interest thereon at the applicable Post-Default Rate from the date of such expenditure until paid. Notwithstanding the foregoing, neither the Administrative Agent nor any Lender shall have any liability or responsibility whatsoever for the performance of any obligation of the Borrower or such Loan Party under this Agreement or any other Loan Document. (a)    Generally. The rights and remedies of the Administrative Agent and the Lenders under this Agreement, each of the other Loan Documents, and the Fee Letter, and of the Specified Derivatives Providers under the Specified Derivative Contracts, shall be cumulative and not exclusive of any rights or remedies which any of them may otherwise have under Applicable Law. In exercising their respective rights and remedies the Administrative Agent, the Lenders and the Specified Derivatives Providers may be selective and no failure or delay by the Administrative Agent or any of the Lenders in exercising any right shall operate as a waiver of it, nor shall any single or partial exercise of any power or right preclude its other or further exercise or the exercise of any other power or right. (b)    Enforcement by Administrative Agent. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Article XII for the benefit of all the Lenders; provided that the foregoing shall not prohibit (i) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as the Administrative Agent) hereunder and under the other Loan Documents, (ii) any Specified Derivatives Provider from exercising the rights and remedies that inure to its benefit under any Specified Derivatives Contract, (iii) any Lender from exercising setoff rights in accordance with Section 13.4 (subject to the terms of Section 3.3), or (v) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as the Administrative Agent hereunder and under the other Loan Documents, then (x) the Requisite Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Article XII and (y) in addition to the matters set forth in clauses (ii) and (iii) of the preceding proviso and subject to Section 3.3, any Lender may, with the consent of the Requisite Lenders, enforce any rights and remedies available to it and as authorized by the Requisite Lenders. Each Lender hereby irrevocably appoints and authorizes the Administrative Agent to take such action as contractual representative on such Lender’s behalf and to exercise such powers under this Agreement and the other Loan Documents as are specifically delegated to the Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Not in limitation of the foregoing, each Lender authorizes and directs the Administrative Agent to enter into the Loan Documents for the benefit of the Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by the Requisite Lenders in accordance with the provisions of this Agreement or the Loan Documents, and the exercise by the Requisite Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein shall be construed to deem the Administrative Agent a trustee or fiduciary for any Lender or to impose on the Administrative Agent duties or obligations other than those expressly provided for herein. Without limiting the generality of the foregoing, the use of the terms “Agent”, “Administrative Agent”, “agent” and similar terms in the Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, use of such terms is merely a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Administrative Agent shall deliver to each Lender, promptly upon receipt thereof by the Administrative Agent, copies of each of the financial statements, certificates, notices and other documents delivered to the Administrative Agent pursuant to Article IX. that the Borrower is not otherwise required to deliver directly to the Lenders. The Administrative Agent will furnish to any Lender, upon the request of such Lender, a copy (or, where appropriate, an original) of any document, instrument, agreement, certificate or notice furnished to the Administrative Agent by the Borrower, any Loan Party or any other Affiliate of the Borrower, pursuant to this Agreement or any other Loan Document not already delivered to such Lender pursuant to the terms of this Agreement or any such other Loan Document. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of any of the Obligations), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders (or all of the Lenders if explicitly required under any other provision of this Agreement), and such instructions shall be binding upon all Lenders and all holders of any of the Obligations; provided, however, that, notwithstanding anything in this Agreement to the contrary, the Administrative Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement or any other Loan Document or Applicable Law. Not in limitation of the foregoing, the Administrative Agent may exercise any right or remedy it or the Lenders may have under any Loan Document upon the occurrence of a Default or an Event of Default unless the Requisite Lenders have directed the Administrative Agent otherwise. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Requisite Lenders (or all of the Lenders if explicitly required under any other provision of this Agreement). Wells Fargo, as a Lender, shall have the same rights and powers as a Lender or a Specified Derivatives Provider under this Agreement and any other Loan Document or any Specified Derivatives Contract, as the case may be, as any other Lender or Specified Derivatives Provider, and may exercise the same as though it were not the Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Wells Fargo in each case in its individual capacity. Wells Fargo and its Affiliates may each accept deposits from, maintain deposits or credit balances for, invest in, lend money to, act as trustee under indentures of, serve as financial advisor to, and generally engage in any kind of business with the Borrower, any other Loan Party or any other Affiliate thereof as if it were any other bank and without any duty to account therefore to the other Lenders or Specified Derivatives Providers. Further, the Administrative Agent and any Affiliate may accept fees and other consideration from the Borrower for services in connection with this Agreement or any Specified Derivatives Contract or otherwise without having to account for the same to the other Lenders or any Specified Derivatives Provider. The Lenders acknowledge that, pursuant to such activities, Wells Fargo or its affiliates may receive information regarding the Borrower, other Loan Parties, other Subsidiaries and other Affiliates (including information that may be subject to confidentiality obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. All communications from the Administrative Agent to any Lender requesting such Lender’s determination, consent or approval (a) shall be given in the form of a written notice to such Lender, (b) shall be accompanied by a description of the matter or issue as to which such determination, approval or consent is requested, or shall advise such Lender where information, if any, regarding such matter or issue may be inspected, or shall otherwise describe the matter or issue to be resolved, (c) shall include a legend substantially as follows, printed in capital letters or boldface type: “THIS COMMUNICATION REQUIRES IMMEDIATE RESPONSE. FAILURE TO RESPOND WITHIN TEN (10) BUSINESS DAYS AFTER THE DELIVERY OF THIS COMMUNICATION SHALL CONSTITUTE A DEEMED APPROVAL BY THE ADDRESSEE OF THE MATTER DESCRIBED ABOVE.” and (d) shall include, if reasonably requested by such Lender and to the extent not previously provided to such Lender, written materials provided to the Administrative Agent by the Borrower in respect of the matter or issue to be resolved. Unless a Lender shall give written notice to the Administrative Agent that it specifically objects to the requested determination, consent or approval (together with a reasonable written explanation of the reasons behind such objection) within ten (10) Business Days (or such lesser or greater period as may be specifically required under the express terms of the Loan Documents) of receipt of such communication (“Lender Reply Period”), such Lender shall be deemed to have conclusively approved such requested determination, consent or approval. With respect to decisions requiring the approval of the Requisite Lenders, Administrative Agent shall timely submit any required written notices to all Lenders and upon receiving the required approval or consent shall follow the course of action or determination recommended by Administrative Agent or such other course of action recommended by the Requisite Lenders, and each non-responding Lender shall be deemed to have concurred with such recommended course of action. Notwithstanding the foregoing, any matter requiring all Lenders’ approval or consent shall not be deemed given by any Lender’s failure to respond within any such Lender’s Reply Period. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or Event of Default unless the Administrative Agent has received notice from a Lender or the Borrower referring to this Agreement, describing with reasonable specificity such Default or Event of Default and stating that such notice is a “notice of default.” If any Lender (excluding the Lender which is also serving as the Administrative Agent) becomes aware of any Default or Event of Default, it shall promptly send to the Administrative Agent such a “notice of default”, but nothing herein contained shall impose upon any Lender an obligation to determine whether there has been or is a Default or Event of Default. Further, if the Administrative Agent receives such a “notice of default,” the Administrative Agent shall give prompt notice thereof to the Lenders. Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by it under or in connection with this Agreement or any other Loan Document, except for its or their own gross negligence or willful misconduct in connection with its duties expressly set forth herein or therein as determined by a court of competent jurisdiction in a final, non-appealable judgment. Without limiting the generality of the foregoing, the Administrative Agent may consult with legal counsel (including its own counsel or counsel for the Borrower or any other Loan Party), liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. Neither the Administrative Agent nor any of its Related Parties: (a) makes any warranty or representation to any Lender or any other Person and shall be responsible to any Lender or any other Person for any statement, warranty or representation made or deemed made by the Borrower, any other Loan Party or any other Person in or in connection with this Agreement or any other Loan Document; (b) shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Loan Document or the satisfaction of any conditions precedent under this Agreement or any Loan Document on the part of the Borrower or other Persons or inspect the property, books or records of the Borrower or any other Person; (c) shall be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document, any other instrument or document furnished pursuant thereto or any collateral covered thereby or the perfection or priority of any Lien in favor of the Administrative Agent on behalf of the Lender Parties in any such collateral; (d) shall have any liability in respect of any recitals, statements, certifications, representations or warranties contained in any of the Loan Documents or any other document, instrument, agreement, certificate or statement delivered in connection therewith; and (e) shall incur any liability under or in respect of this Agreement or any other Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telephone, telecopy or electronic mail) believed by it to be genuine and signed, sent or given by the proper party or parties. The Administrative Agent may execute any of its duties under the Loan Documents by or through agents, employees or attorneys-in-fact and shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct in the selection of such agent or attorney in fact as determined by a court of competent jurisdiction in a final, non-appealable judgment. Regardless of whether the transactions contemplated by this Agreement and the other Loan Documents are consummated, each Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) pro rata in accordance with such Lender’s respective Pro Rata Share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against the Administrative Agent (in its capacity as the Administrative Agent but not as a “Lender”) in any way relating to or arising out of the Loan Documents, any transaction contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under the Loan Documents (collectively, “Indemnifiable Amounts”); provided, however, that no Lender shall be liable for any portion of such Indemnifiable Amounts to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment; provided, however, that no action taken in accordance with the directions of the Requisite Lenders (or all of the Lenders, if expressly required hereunder) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. Without limiting the generality of the foregoing, each Lender agrees to reimburse the Administrative Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) promptly upon demand for its ratable share of any out-of-pocket expenses (including the reasonable fees and expenses of the counsel to the Administrative Agent) incurred by the Administrative Agent (except to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment) in connection with the preparation, negotiation, execution, administration, or enforcement (whether through negotiations, legal proceedings, or otherwise) of, or legal advice with respect to the rights or responsibilities of the parties under, the Loan Documents, any suit or action brought by the Administrative Agent to enforce the terms of the Loan Documents and/or collect any Obligations, any “lender liability” suit or claim brought against the Administrative Agent and/or the Lenders, and any claim or suit brought against the Administrative Agent and/or the Lenders arising under any Environmental Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by the Lenders on the request of the Administrative Agent notwithstanding any claim or assertion that the Administrative Agent is not entitled to indemnification hereunder upon receipt of an undertaking by the Administrative Agent that the Administrative Agent will reimburse the Lenders if it is actually and finally determined by a court of competent jurisdiction that the Administrative Agent is not so entitled to indemnification. The agreements in this Section shall survive the payment of the Loans and all other amounts payable hereunder or under the other Loan Documents and the termination of this Agreement. If the Borrower shall reimburse the Administrative Agent for any Indemnifiable Amount following payment by any Lender to the Administrative Agent in respect of such Indemnifiable Amount pursuant to this Section, the Administrative Agent shall share such reimbursement on a ratable basis with each Lender making any such payment. Each of the Lenders expressly acknowledges and agrees that neither the Administrative Agent nor any of its Related Parties has made any representations or warranties to such Lender and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Borrower, any other Loan Party or any other Subsidiary or Affiliate, shall be deemed to constitute any such representation or warranty by the Administrative Agent or any Lender. Each of the Lenders acknowledges that it has, independently and without reliance upon the Administrative Agent, any other Lender or counsel to the Administrative Agent, or any of their respective Related Parties, and based on the financial statements of the Borrower, the other Loan Parties, the other Subsidiaries and other Affiliates, and inquiries of such Persons, its independent due diligence of the business and affairs of the Borrower, the other Loan Parties, the other Subsidiaries and other Persons, its review of the Loan Documents, the legal opinions required to be delivered to it hereunder, the advice of its own counsel and such other documents and information as it has deemed appropriate, made its own credit and legal analysis and decision to enter into this Agreement and the transactions contemplated hereby. Each of the Lenders also acknowledges that it will, independently and without reliance upon the Administrative Agent, any other Lender or counsel to the Administrative Agent or any of their respective Related Parties, and based on such review, advice, documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under the Loan Documents. The Administrative Agent shall not be required to keep itself informed as to the performance or observance by the Borrower or any other Loan Party of the Loan Documents or any other document referred to or provided for therein or to inspect the properties or books of, or make any other investigation of, the Borrower, any other Loan Party or any other Subsidiary. Except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Administrative Agent under this Agreement or any of the other Loan Documents, the Administrative Agent shall have no duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of the Borrower, any other Loan Party or any other Affiliate thereof which may come into possession of the Administrative Agent or any of its Related Parties. Each of the Lenders acknowledges that the Administrative Agent’s legal counsel in connection with the transactions contemplated by this Agreement is only acting as counsel to the Administrative Agent and is not acting as counsel to any Lender. The Administrative Agent may resign at any time as the Administrative Agent under the Loan Documents by giving written notice thereof to the Lenders and the Borrower. In addition, the Administrative Agent may be removed as Administrative Agent under the Loan Documents at any time by all Lenders (other than the Lender then acting as Administrative Agent) and, provided no Default or Event of Default exists, the Borrower upon 30-days’ prior written notice if (a) the Administrative Agent is found by a court of competent jurisdiction in a final, non-appealable judgment to have committed gross negligence or willful misconduct in the course of performing its duties hereunder or (b) the Lender then acting in the capacity of Administrative Agent shall be a Defaulting Lender. Upon any such resignation or removal, the Requisite Lenders (which, in the case of the removal of the Administrative Agent as provided in the immediately preceding sentence, shall be determined without regard to the Commitment of the Lender then acting as Administrative Agent) shall have the right to appoint a successor Administrative Agent which appointment shall, provided no Default or Event of Default exists, be subject to the Borrower’s approval, which approval shall not be unreasonably withheld or delayed (except that the Borrower shall, in all events, be deemed to have approved each Lender and any of its affiliates as a successor Administrative Agent). If no successor Administrative Agent shall have been so appointed in accordance with the immediately preceding sentence, and shall have accepted such appointment, within thirty (30) days after the current Administrative Agent’s giving of notice of resignation or the Lenders’ removal of the current Administrative Agent, then the current Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be an Eligible Assignee (but in no event shall any such successor Administrative Agent be a Defaulting Lender or an Affiliate of a Defaulting Lender); provided that if the Administrative Agent shall notify the Borrower and the Lenders that no Lender has accepted such appointment, then such resignation or removal shall nonetheless become effective in accordance with such notice, or, in the case of removal, at the end of such 30-day period and (1) the Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made to each Lender directly, until such time as a successor Administrative Agent has been appointed as provided for above in this Section; provided, further that such Lenders so acting directly shall be and be deemed to be protected by all indemnities and other provisions herein for the benefit and protection of the Administrative Agent as if each such Lender were itself the Administrative Agent. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall and duties of the current Administrative Agent, and the current Administrative Agent shall be discharged from its duties and obligations under the Loan Documents. After any Administrative Agent’s resignation or removal hereunder as the Administrative Agent, the provisions of this Article XII shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under the Loan Documents. Notwithstanding anything contained herein to the contrary, the Administrative Agent may assign its rights and duties under the Loan Documents to any of its affiliates by giving the Borrower and each Lender prior written notice. JPMorgan Chase Bank, N.A. is the Syndication Agent and in such capacity assumes no responsibility or obligation hereunder, including, without limitation, for servicing, enforcement or collection of any of the Loans, nor any duties as an agent hereunder for the Lenders. The title given to the Syndication Agent is solely honorific and implies no fiduciary responsibility on the part of the Syndication Agent to the Administrative Agent, any Lender, the Borrower or any other Loan Party and the use of such titles does not impose on the Syndication Agent any duties or obligations greater than those of any other Lender or entitle the Syndication Agent to any rights other than those to which any other Lender is entitled. Deutsche Bank Securities Inc. is the Documentation Agent and in such capacity assumes no responsibility or obligation hereunder, including, without limitation, for servicing, enforcement or collection of any of the Loans, nor any duties as an agent hereunder for the Lenders. The title given to the Documentation Agent is solely honorific and implies no fiduciary responsibility on the part of the Documentation Agent to the Administrative Agent, any Lender, the Borrower or any other Loan Party and the use of such titles does not impose on the Documentation Agent any duties or obligations greater than those of any other Lender or entitle the Documentation Agent to any rights other than those to which any other Lender is entitled. Without limitation of the foregoing, the Documentation Agent does not have any of the duties, rights or obligations of a Lender under this Agreement or any of the Loan Documents. No Specified Derivatives Provider that obtains the benefits of Section 11.5 by virtue of the provisions hereof or of any Loan Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of any Loan Document other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to Specified Derivatives Contracts unless the Administrative Agent has received written notice of such Specified Derivatives Contracts, together with such supporting documentation as the Administrative Agent may request, from the applicable Specified Derivatives Provider. ARTICLE XIII.     Miscellaneous Unless otherwise provided herein (including without limitation as provided in Section 9.5), communications provided for hereunder shall be in writing and shall be mailed, telecopied, or delivered as follows: If to the Borrower: Chesapeake Lodging, L.P. 4300 Wilson Boulevard Suite 625 Arlington, VA 22203 Attention: Douglas Vicari Telecopy Number:    (571) 349-9480 Telephone Number:    (571) 349-9452 If to the Administrative Agent: Wells Fargo Bank, N.A. 1750 H Street, NW, Suite 550 Attn: Mark F. Monahan Telecopy Number:    (202) 429-2589 Telephone:    (202) 303-3017 Hospitality Finance Group 2030 Main Street, Suite 800 Irvine, CA 92614 Attn: Rhonda Friedly Telecopy Number:    (949) 851-9728 If to any other Lender: To such Lender’s address or telecopy number as set forth on the Administrative Questionnaire provided to the Administrative Agent. or, as to each party at such other address as shall be designated by such party in a written notice to the other parties delivered in compliance with this Section; provided, a Lender shall only be required to give notice of any such other address to the Administrative Agent and the Borrower. All such notices and other communications shall be effective (i) if mailed, upon the first to occur of receipt or the expiration of three (3) days after the deposit in the United States Postal Service mail, postage prepaid and addressed to the address of the Borrower or the Administrative Agent and Lenders at the addresses specified; (ii) if telecopied, when transmitted; (iii) if hand delivered, when delivered; or (iv) if delivered in accordance with Section 9.5 to the extent applicable; provided, however, that, in the case of the immediately preceding clauses (i), (ii) and (iii), non-receipt of any communication as of the result of any change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such communication. Notwithstanding the immediately preceding sentence, all notices or communications to the Administrative Agent or any Lender under Article II shall be effective only when actually received. None of the Administrative Agent or any Lender shall incur any liability to any Loan Party (nor shall the Administrative Agent incur any liability to the Lenders) for acting upon any telephonic or electronic notice referred to in this Agreement which the Administrative Agent or such Lender, as the case may be, believes in good faith to have been given by a Person authorized to deliver such notice or for otherwise acting in good faith hereunder. Failure of a Person designated to get a copy of a notice to receive such copy shall not affect the validity of notice properly given to another Person. The Borrower agrees (a) to pay or reimburse the Administrative Agent for all of its reasonable out-of-pocket costs and reasonable expenses incurred in connection with the preparation, negotiation and execution of, and any amendment, supplement or modification to, any of the Loan Documents (including due diligence expense and reasonable travel expenses related to closing), and the consummation of the transactions contemplated hereby and thereby, including the reasonable fees and disbursements of counsel to the Administrative Agent and all costs and expenses of the Administrative Agent in connection with the use of IntraLinks, SyndTrak or other similar information transmission systems in connection with the Loan Documents and of the Administrative Agent in connection with the review of Properties for inclusion in calculations of the provisions of Sections 10.1(b)(ii), (f) and (g) and the Administrative Agent’s other activities under Article IV and the reasonable fees and disbursements of outside counsel to the Administrative Agent relating to all such activities, (b) to pay or reimburse the Administrative Agent and the Lenders for all their costs and rights under the Loan Documents and the Fee Letter, including the reasonable fees and disbursements of their respective outside counsel and any payments in indemnification or otherwise payable by the Lenders to the Administrative Agent pursuant to the Loan Documents, (c) to pay, and indemnify and hold harmless the Administrative Agent and the Lenders from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any failure to pay or delay in paying, documentary, stamp, excise and other similar taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of any of the Loan Documents, or consummation of any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Loan Document and (d) to the extent not already covered by any of the preceding subsections, to pay the fees and disbursements of counsel to the Administrative Agent and any Lender incurred in connection with the representation of the Administrative Agent or such Lender in any matter relating to or arising out of any bankruptcy or other proceeding of the type described in Sections 11.1(e) or 11.1(f), including, without limitation (i) any motion for relief from any stay or similar order, (ii) the negotiation, preparation, execution and delivery of any document relating to the Obligations and (iii) the negotiation and preparation of any debtor in possession financing or any plan of reorganization of the Borrower or any other Loan Party, whether proposed by the Borrower, such Loan Party, the Lenders or any other Person, and whether such fees and expenses are incurred prior to, during or after the commencement of such proceeding or the confirmation or conclusion of any such proceeding. If the Borrower shall fail to pay any amounts required to be paid by it pursuant to this Section, the Administrative Agent and/or the Lenders may pay such amounts on behalf of the Borrower and such amounts shall be deemed to be Obligations owing hereunder. Subject to Section 3.3 and in addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, the Administrative Agent and each Lender and each Participant is hereby authorized by the Borrower, at any time or from time to time while an Event of Default exists, without notice to the Borrower or to any other Person, any such notice being hereby expressly waived, but in the case of a Lender or a Participant subject to receipt of the prior written consent of the Administrative Agent and the Requisite Lenders exercised in their sole discretion, to set off and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held or owing by the Administrative Agent, such Lender, such Participant or any affiliate of the Administrative Agent or such Lender, to or for the credit or the account of the Borrower against and on account of any of the Obligations, irrespective of whether or not any or all of the Loans and all other Obligations have been declared to be, or have otherwise become, due and payable as permitted by Section 11.2, and although such Obligations shall be contingent or unmatured. Notwithstanding anything to the contrary in this Section, if any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 3.9 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders and (y) such Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. (a)    EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE PARENT GUARANTOR, THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT, THE PARENT GUARANTOR AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR THE FEE LETTER OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE PARENT GUARANTOR, THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE. (b)    THE PARENT GUARANTOR, THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, BOROUGH OF MANHATTAN, AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE PARTIES HERETO AGREES THAT A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE PARENT GUARANTOR, THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE ADMINISTRATIVE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION. (c)    THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS AGREEMENT. respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of the immediately following subsection (b), (ii) by way of participation in accordance with the provisions of the immediately following subsection (d), (iii) by way of pledge or assignment of a security interest subject to the restrictions of the immediately following subsection (e), or (iv) upon demand by Borrower pursuant to, and in accordance with, Section 5.6, (and, subject to the last sentence of the immediately following subsection (b), 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 the immediately following subsection (d) and, to the extent expressly contemplated hereby, the Related Parties of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. 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 an assigning Lender’s Commitment and/or the Loans at the time owing to it, or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B)    in any case not described in the immediately preceding subsection (A), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (in each case, determined as of the date the Assignment Assumption, as of the Trade Date) shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Default or Event of Default shall exist, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that if, after giving effect to such assignment, the amount of the Commitment held by such assigning Lender or the outstanding principal balance of the Loans of such assigning Lender, as applicable, would be less than $5,000,000, then such assigning Lender shall assign the entire amount of its Commitment and the Loans at the time owing to it. obligations under this Agreement with respect to the Loan or the Commitment assigned. except to the extent required by clause (i)(B) of this subsection (b) and, in addition: (A)    the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) a Default or Event of Default shall exist at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received notice thereof; and (B)    the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not already a Lender with a Commitment, an Affiliate of such a Lender or an Approved Fund with respect to such a Lender, (iv)    Assignment and Acceptance; Notes. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $4,500 for each assignment (or $7,500 for any assignment with respect to a Defaulting Lender pursuant to Section 3.9(e)) (which fee the Administrative Agent may, in its sole discretion, elect to waive), and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. If requested by the transferor Lender or the assignee, upon the consummation of any assignment, the transferor Lender, the Administrative Agent and the Borrower shall make appropriate arrangements so that new Notes are issued to the assignee and such transferor Lender, as appropriate. (v)    No Assignment to Certain Persons. No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or to any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B). natural person. (vii)    Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. to the immediately following subsection (c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a 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 5.4, 13.2 and 13.10 and the other provisions of this Agreement and the other Loan Documents as provided in Section 13.12 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender. Any assignment or transfer by a this paragraph 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 the immediately following subsection (d). (c)    Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Principal Office a and principal amounts (and stated interest) of the Loans owing to, each Lender the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall 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. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. Person (other than a natural Person or the Borrower or any of the Borrower’s 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) the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to (w) increase such Lender’s Commitment, (x) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduce the rate at which interest is payable thereon or (z) release any Guarantor from its Obligations under the Guaranty except as contemplated by Section 4.2(b), in each case, as applicable to that portion of such Lender’s rights and/or obligations that are subject to the participation. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.10, 5.1, 5.4 (subject to the requirements and limitations therein, including the requirements under Section 3.10(g) (it being understood that the documentation required under Section 3.10(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 5.6 as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.1 or 3.10, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Regulatory Change that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 5.6 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 13.4 as though it were a Lender; provided that such Participant agrees to be subject to Section 3.3 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (e)    Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (f)    No Registration. Each Lender agrees that, without the prior written consent of the Borrower and the Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction. (g)    USA Patriot Act Notice; Compliance. In order for the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act, prior to any Lender that is organized under the laws of a jurisdiction outside of the United States of America becoming a party hereto, the Administrative Agent may request, and such Lender shall provide to the Administrative Agent, its name, address, tax identification number and/or such other identification information as shall be necessary for the Administrative Agent to comply with federal law (a)    Generally. Except as otherwise expressly provided in this Agreement, (i) any consent or approval required or permitted by this Agreement or in any Loan Document to be given by the Lenders may be given, (ii) any term of this Agreement or of any other Loan Document may be amended, (iii) the performance or observance by the Borrower or any other Loan Party or other Subsidiary of the Parent Guarantor of any terms of this Agreement or such other Loan Document may be waived, and (iv) the continuance of any Default or Event of Default may be prospectively) with, but only with, the written consent of the Requisite Lenders (or the Administrative Agent at the written direction of the Requisite Lenders), and, in the case of an amendment to any Loan Document, the written consent of each Loan Party which is party thereto. Notwithstanding the previous sentence, the Administrative Agent, shall be authorized on behalf of all the Lenders, without the necessity of any notice to, or further consent from, any Lender, to waive the imposition of the late fees provided in Section 2.10, up to a maximum of three (3) times per calendar year. (b)    Additional Consent. In addition to the foregoing requirements, no amendment, waiver or consent shall: (i)    increase (or reinstate) the Commitments of a Lender or subject a Lender to any additional obligations without the written consent of such Lender; (ii)    reduce the principal of, or interest that has accrued or the rates of interest that will be charged on the outstanding principal amount of, any Loans or other Obligations without the written consent of each Lender directly affected thereby; provided, however, only the written consent of the Requisite Lenders shall be required for the waiver of interest payable at the Post-Default Rate, retraction of the imposition of interest at the Post-Default Rate and amendment of the definition of “Post-Default Rate”; (iii)    reduce the amount of any Fees payable to any Lender without the written consent of such Lender; (iv)    except for waivers permitted under the last sentence of Section 13.7(a), postpone any date fixed for, or forgive, any payment of principal of, or interest on, any Loans or for the payment of Fees or any other Obligations (including without limitation any extension of the Maturity Date except in accordance with Section 2.15) without the written consent of each Lender; (v)    change the definitions of Commitment Percentage or Pro Rata Share without the written consent of each Lender; (vi)    amend this Section or amend the definitions of the terms used in this Agreement or the other Loan Documents insofar as such definitions affect the substance of this Section without the written consent of each Lender; (vii)    modify the definition of the term “Requisite Lenders” or modify in any other manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof without the written consent of each Lender; (viii)    release any Guarantor from its obligations under the Guaranty except as contemplated by Section 4.2(b) or Section 10.4 without the written consent of each Lender; (ix)    waive a Default or Event of Default under Section 11.1(a) without the written consent of each Lender adversely affected thereby; (x)    amend, or waive the Borrower’s compliance with, Section 2.16 without the written consent of each Lender; or (xi)    amend Section 3.2 in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender. (c)    Consent of Specified Derivatives Provider and Defaulting Lender. Any amendment, waiver or consent with respect to any Loan Document that (i) diminishes the rights of a Specified Derivatives Provider in a manner or to an extent dissimilar to that affecting the Lenders or (ii) increases the liabilities or obligations of a Specified Derivatives Provider shall, in addition to the Lenders required hereinabove to take such action, require the consent of the Lender that is (or having an Affiliate that is) such Specified Derivatives Provider. 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 Commitments 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. (d)    Amendment of Administrative Agent’s Duties, Etc. No amendment, waiver or consent unless in writing and signed by the Administrative Agent, in addition to the Lenders required hereinabove to take such action, shall affect the rights or duties of the Administrative Agent under this Agreement or any of the other Loan Documents. No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon and any amendment, waiver or purpose set forth therein. No course of dealing or delay or omission on the part of the Administrative Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Any Event of Default occurring hereunder shall continue to exist until such time as such Event of Default is waived in writing in accordance with the terms of this Section, notwithstanding any attempted cure or other action by the Borrower, any other Loan Party or any other Person subsequent to the occurrence of such Event of Default. Except as otherwise explicitly provided for herein or in any other Loan Document, no notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances. (e)    Technical Amendments. Notwithstanding anything to the contrary in this Section 13.7, if the Administrative Agent and the Borrower have jointly identified an ambiguity, omission, mistake or defect in any provision of this Agreement or an inconsistency between provisions of this Agreement, the Administrative Agent and the Borrower shall be permitted to amend such provision or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interests of the Lenders. Any such amendment shall become effective without any further action or consent of any of other party to this Agreement. The relationship between the Borrower, on the one hand, and the Lenders and the Administrative Agent, on the other hand, shall be solely that of borrower and lender. Neither the Administrative Agent nor any Lender shall have any fiduciary responsibilities to the Borrower and no provision in this Agreement or in any of the other Loan Documents, and no course of dealing between or among any of the parties hereto, shall be deemed to create any fiduciary duty owing by the Administrative Agent or any Lender to any Lender, the Borrower, any Subsidiary or any other Loan Party. Neither the Administrative Agent nor any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrower’s business or operations. The Administrative Agent and each Lender shall maintain the confidentiality of all Information (as defined below) but in any event may make disclosure: (a) to its Affiliates and to its and its Affiliates’ other respective Related Parties such Information confidential); (b) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any actual or proposed assignee, Participant or other transferee in connection with a potential transfer of any Commitment or participation therein as permitted hereunder, or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations; (c) as required or requested by any Governmental Authority or representative thereof or pursuant to legal process or in connection with any legal proceedings, or as otherwise required by Applicable Law; (d) to the Administrative Agent’s or such Lender’s independent auditors and other professional advisors (provided they shall be notified of the confidential nature of the information); (e) in connection with the exercise of any remedies under any Loan Document (or any Specified Derivatives Contract) or any action or proceeding relating to any Loan Document (or any Specified Derivatives Contract) or the enforcement of rights hereunder or thereunder; (f) to the extent such this Section actually known by the Administrative Agent or such Lender to be a breach of this Section or (ii) becomes available to the Administrative Agent. any Lender or any Affiliate of the Administrative Agent or any Lender on a nonconfidential basis from a source other than the Borrower or any Affiliate of the Borrower; (g) to the extent requested by, or required to be disclosed to, any nationally recognized rating agency or regulatory or similar authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners) having or purporting to have jurisdiction over it; (h) to bank trade publications, such information to consist of deal terms and other information customarily found in such publications; (i) to any other party hereto; (j) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loan Documents; and (k) with the consent of the Borrower. Notwithstanding the foregoing, the Administrative Agent and each Lender may disclose any such confidential information, without notice to the Borrower or any other Loan Party, to Governmental Authorities in connection with any regulatory examination of the Administrative Agent or such Lender or in accordance with the regulatory compliance policy of the Administrative Agent or such Lender. As used in this Section, the term “Information” means all information received from the Borrower, any other Loan Party, any other Subsidiary or Affiliate relating to any Loan Party or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower, any other Loan Party, any other Subsidiary or any Affiliate, provided that, in the case of any such information received from the Borrower, any other Loan Party, any other Subsidiary or any Affiliate after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its its own confidential information. (a)    The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnified Party”) against, and hold each Indemnified Party harmless from, and shall pay or reimburse any such Indemnified Party for, any and all losses, claims (including without limitation, Environmental Claims), damages, liabilities and related expenses (including without limitation, the fees, charges and disbursements of any counsel for any Indemnified Party (which counsel may be employees of any Indemnified Party)), incurred by any Indemnified Party or asserted against any Indemnified Party by any Person (including the Borrower, any other Loan Party or any other Subsidiary) other than such Indemnified Party and its Related Parties, arising contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (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 the Borrower, any other Loan Party or any other Subsidiary, or any Environmental Claim related in any way to the Borrower, any other Loan Party or any other Subsidiary, (iv) any actual or prospective claim, litigation, investigation or proceeding (an “Indemnity Proceeding”) relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, any other Loan Party or any other Subsidiary, and regardless of whether any Indemnified Party is a party thereto, or (v) any claim (including without limitation, any Environmental Claims), investigation, litigation or other proceeding (whether or not the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof, arising out of or in any way connected with the Loans, this Agreement, any other Loan Document, or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby, including without limitation, reasonable attorneys and consultant’s fees; provided, however, that such indemnity shall not, as to any Indemnified Party, 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 Indemnified Party. (b)    If and to the extent that the obligations of the Borrower under this Section are unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under Applicable Law. (c)    The Borrower’s obligations under this Section shall survive any termination of this Agreement and the other Loan Documents and the payment in full in cash of the Obligations, and are in addition to, and not in substitution of, any of the other obligations set forth in this Agreement or any other Loan References in this Section 13.10 to “Lender” or “Lenders” shall be deemed to include such Persons (and their Affiliates) in their capacity as Specified Derivatives Providers. At such time as (a) all of the Commitments have been terminated, (b) none of the Lenders is obligated any longer under this Agreement to make any Loans and (c) all Obligations (other than obligations which survive as provided in the following sentence) have been paid and satisfied in full, this Agreement shall terminate. The indemnities to which the Administrative Agent and the Lenders are entitled under the provisions of Sections 3.10, 5.1, 5.4, 12.8, 13.2 and 13.10 and any other provision of this Agreement and the other Loan Documents, and the provisions of Section 13.5, shall continue in full force and effect and shall protect the Administrative Agent and the Lenders (i) notwithstanding any termination of this Agreement, or of the other Loan Documents, against events arising after such termination as well as before and (ii) at all times after any such party ceases to be a party to this Agreement with respect to all matters and events existing on or prior to the date such party ceased to be a party to this Agreement. If any provision under this Agreement or the other Loan Documents shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed severed from the Loan Documents, and the validity, legality and enforceability of the remaining provisions shall remain in full force as though the invalid, illegal, or unenforceable provision had never been part of the Loan Documents. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE. To facilitate execution, this Agreement and any amendments, waivers, consents or supplements may be executed in any number of counterparts as may be convenient or required (which may be effectively delivered by facsimile, in portable document format (“PDF”) or other similar electronic means). It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document. It shall not be necessary in making proof of this document to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of , each of the parties hereto. The obligations of the Borrower to direct or prohibit the taking of certain actions by the other Loan Parties and Subsidiaries as specified herein shall be absolute and not subject to any defense the Borrower may have that the Borrower does not control such Loan Parties or Subsidiaries. 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), each of the Parent Guarantor and the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i)(A) the arranging and other services regarding this Agreement provided by Administrative Agent and Arrangers are arm’s-length commercial transactions between the Parent Guarantor, the Borrower each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, (B) each of the Parent Guarantor, the Borrower, and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Parent Guarantor, the Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii)(A) the Administrative Agent, each Lender and each Arranger 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 the Parent Guarantor, the Borrower, any other Loan Party, or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent, any Lender nor any Arranger has any obligation to the Parent Guarantor, the Borrower, any other Loan Party, or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, each Lender and each Arranger and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Parent Guarantor, the Borrower, the other Loan Parties, and their respective Affiliates, and neither the Administrative Agent, any Lender, nor any Arranger has any obligation to disclose any of such interests to the Parent Guarantor, the Borrower, any other Loan Party, or any of their respective Affiliates. To the fullest extent permitted by Applicable Law, each of the Parent Guarantor, the Borrower, and the other Loan Parties hereby agree that it shall not assert any claim that it may have against the Administrative Agent, each Lender and each Arranger based on or otherwise with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. None of the Administrative Agent or any Lender, or any respective Related Parties shall have any liability with respect to, and the Borrower hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, consequential or punitive damages suffered or incurred by the Borrower in connection with, arising out of, or in any way related to, this Agreement, any of the other Loan Documents or the Fee Letter, or any of the transactions contemplated by this Agreement or any of the other Loan Documents. This Agreement, the Notes, the other Loan Documents and the Fee Letter embody the final, entire agreement among the parties hereto and supersede any and all prior commitments, agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof and thereof and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent oral agreements or discussions of the parties hereto. There are no oral agreements among the parties hereto. The Administrative Agent, the Borrower and each Lender acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement and the other Loan Documents with its legal counsel and that this Agreement and the other Loan Documents shall be construed as if jointly drafted by the Administrative Agent, the The Paragraph and Section headings in this Agreement are provided for convenience of reference only and shall not affect its construction or interpretation. By its execution of this Agreement, the Parent Guarantor agrees to comply with the covenants applicable to it as set forth in this Agreement. Section 13.22. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and (b)    the effects of any Bail-in Action on any such liability, including, if applicable: (i)    a reduction in full or in part or cancellation of any such liability; (ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or (iii)    the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority. [Signatures on Following Pages] IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amended and Restated Credit Agreement to be executed by their authorized officers all as of BORROWER: a Delaware limited partnership     its general partner By:                             Graham Wootten Secretary [Signatures Continued on Next Page] Signature Page to Fourth Amended and Restated Credit Agreement WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and as a Lender By:         Mark F. Monahan Senior Vice President JPMORGAN CHASE BANK, N.A., as Syndication Agent and as a Lender By:     Name:      Title:      DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender By:     Name:      Title:          By:     Name:          Title:          KEYBANK NATIONAL ASSOCIATION, as a Lender By:     Name:           Title:           PNC BANK, NATIONAL ASSOCIATION, as a Lender By:     Name:      Title:           ROYAL BANK OF CANADA, as a Lender By:     Name:           Title:           TD BANK, N.A., as a Lender By:     Name:           Title:           REGIONS BANK, as a Lender By:     Name:           Title:           DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Departing Lender By:     Name:           Title:           By:     Name:           Title:           JOINDER BY PARENT GUARANTOR The undersigned, as the Parent Guarantor under the foregoing Agreement, hereby joins in and executes this Agreement for the purposes set forth in Section 13.21. CHESAPEAKE LODGING TRUST, By:                             Graham Wootten Secretary SCHEDULE I COMMITMENTS Lender Commitment $53,333,333.34 $53,333,333.33 Deutsche Bank AG New York Branch $53,333,333.33 KeyBank National Association $28,000,000.00 PNC Bank, National Association $28,000,000.00 Royal Bank of Canada $28,000,000.00 TD Bank, N.A. $28,000,000.00 Regions Bank $28,000,000.00     TOTAL: $300,000,000     SCHEDULE II INITIAL BORROWING BASE PROPERTIES Borrowing Base Property Subsidiary Guarantor Operating Lessee Homewood Suites Seattle Convention Center, Seattle, WA CHSP Seattle LLC CHSP TRS Seattle LLC Hotel Indigo San Diego Gaslamp Quarter, San Diego, CA CHSP San Diego LLC CHSP TRS San Diego LLC Hotel Adagio San Francisco, Autograph Collection, San Francisco, CA CHSP Union Square LLC CHSP TRS Union Square LLC W Chicago - Lakeshore, Chicago, IL CHSP Lakeshore LLC CHSP TRS Lakeshore LLC The Hotel Minneapolis, Autograph Collection, Minneapolis, MN CHSP Minneapolis LLC CHSP TRS Minneapolis LLC Le Meridien New Orleans, New Orleans, LA CHSP New Orleans LLC CHSP TRS New Orleans LLC Hyatt Fisherman’s Wharf, San Francisco, CA CHSP Fisherman Wharf LLC CHSP TRS Fisherman Wharf LLC Hyatt Santa Barbara, Santa Barbara, CA CHSP Santa Barbara LLC CHSP TRS Santa Barbara LLC W New Orleans - French Quarter, New Orleans, LA CHSP French Quarter LLC CHSP TRS French Quarter LLC JW Marriott San Francisco Union Square, San Francisco, CA CHSP Union Square II LLC CHSP TRS Union Square II LLC SCHEDULE 4.1 INITIAL OPERATING PROPERTY VALUES Borrowing Base Property   Initial Operating Property Value Homewood Suites Seattle Convention Center   $68,310,772 Hotel Indigo San Diego Gaslamp Quarter   $64,716,853 Hotel Adagio San Francisco, Autograph Collection   $74,766,701 W Chicago - Lakeshore   $145,000,000 The Hotel Minneapolis, Autograph Collection   $44,280,025 W New Orleans - French Quarter   $37,452,693 Le Meridien New Orleans   $78,000,000 Hyatt Fisherman's Wharf   $92,168,010 Hyatt Santa Barbara   $59,771,066 JW Marriott San Francisco Union Square   $147,150,000     $811,616,120 SCHEDULE 7.1(b) OWNERSHIP STRUCTURE [Attached] SCHEDULE 7.1(f) PROPERTIES Each of the Initial Subsidiary Guarantors owns its respective Initial Borrowing Base Property identified in Schedule II, and CHSP Mission Bay LLC owns the Hyatt Regency Mission Bay Spa and Marina in San Diego, California. SCHEDULE 7.1(g) INDEBTEDNESS AND GUARANTIES Indebtedness and Guaranties  a) Loan Agreement dated June 30, 2011 with Goldman Sachs Commercial Mortgage Capital, L.P., evidencing a loan in the original principal amount of $95,000,000, secured by the Hyatt Regency Boston. In connection with this loan, (i) Borrower executed and delivered a Guaranty dated June 30, 2011 for the benefit of Goldman Sachs Commercial Mortgage Capital, L.P., and (ii) Borrower and CHSP Boston II LLC executed and delivered a Completion Guaranty dated June 30, 2011 for the benefit of Goldman Sachs Commercial Mortgage Capital, L.P. b) Assumption and Release Agreement dated June 30, 2011, pursuant to which CHSP Navy Yard LLC, as new borrower, assumed the obligations of NJA Hotel LLC, as original borrower, to repay a loan with outstanding principal balance of $37,549,146.86 owed to Wells Fargo Bank, N.A., as Trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass0Through Certificates, Series 2006-1Q12, as lender; such loan is secured by the Courtyard Washington Capitol Hill/Navy Yard, and such loan is further supported by that certain Guaranty of Recourse Obligations delivered by Parent Guarantor and Borrower, for purposes set forth therein. c) Loan in the amount of $70,000,000 made by Western National Life Insurance Company to CHSP Denver LLC, as evidenced by a Promissory Note dated July 27, 2012 and secured by the Denver Marriott City Center and associated real and personal property. In connection with this loan, the Borrower executed a recourse carveout guaranty. d) Loan Agreement dated May 3, 2013 with PNC Bank, National Association, evidencing a loan in the original principal amount of $60,000,000, secured by the Boston Marriott Newton; such loan is further supported by that certain Guaranty of Recourse Obligations delivered by the Borrower, for purposes set forth therein. e) Loan Agreement dated July 11, 2013 with PNC Bank, National Association, evidencing a loan in the original principal amount of $92,500,000, secured by the Le Meridien San Francisco; such loan is further supported by that certain Guaranty of Recourse Obligations delivered by the Borrower, for purposes set forth therein. f) Loan Agreement dated February 15, 2013 with Goldman Sachs Mortgage Company, evidencing a loan in the original principal amount of $32,000,000, secured by the Hilton Checkers Los Angeles. In connection with this loan, (i) Borrower executed and delivered a Guaranty dated February 15, 2013 for the benefit of Goldman Sachs Mortgage Company, and (ii) Borrower and CHSP Los Angeles LLC executed and delivered a Completion Guaranty dated February 15, 2013 for the benefit of Goldman Sachs Mortgage Company. g) Loan Agreement dated July 11, 2013 with Goldman Sachs Mortgage Company, evidencing a loan in the original principal amount of $93,000,000, secured by the W Chicago – City Center. In connection with this loan, (i) Borrower executed and delivered a Guaranty dated July 11, 2013 for the benefit of Goldman Sachs Mortgage Company, and (ii) Borrower and CHSP Chicago LLC executed and delivered a Completion Guaranty dated July 11, 2013 for the benefit of Goldman Sachs Mortgage Company. h) Loan Agreement dated July 3, 2014 with Goldman Sachs Mortgage Company, evidencing a loan in the original principal amount of $90,000,000, secured by the Hyatt Herald Square New York and the Hyatt Place New York Midtown South. In connection with this loan, (i) Borrower executed and delivered a Guaranty dated July 3, 2014 for the benefit of Goldman Sachs Mortgage Company, and (ii) Borrower, CHSP 31st Street LLC and CHSP 36th Street LLC executed and delivered a Completion Guaranty dated July 3, 2014 for the benefit of Goldman Sachs Mortgage Company. SCHEDULE 7.1(h) MATERIAL CONTRACTS 1. Homewood Suites Seattle Convention Center, Seattle, Washington a) Hotel Management Agreement, dated as of January 25, 2011, by and between CHSP TRS Seattle LLC, a Delaware limited liability company (“Seattle Lessee”) and Evolution Hospitality, LLC, a California limited liability company, as amended by that First Amendment of Hotel Management Agreement dated April 11, 2011, as same may be further amended. b) Franchise License Agreement, dated as of May 2, 2011, by and between Homewood Suites Franchise LLC, a Delaware limited liability company, and Seattle Lessee. c) Lease Agreement, dated as of May 3, 2011, by and between CHSP Seattle LLC, a Delaware limited liability company, and Seattle Lessee. 2. Hotel Indigo San Diego Gaslamp Quarter, San Diego, California a) Management Agreement, dated as of June 17, 2011, by and between CHSP TRS San Diego LLC, a Delaware limited liability company (“San Diego Lessee”) and IHG Management (Maryland) LLC, a Maryland limited liability company. b) Lease Agreement, dated as of June 17, 2011 by and between CHSP San Diego LLC, a Delaware limited liability company, and San Diego Lessee. 3. Hotel Adagio San Francisco, Autograph Collection, San Francisco, California a) Hotel Management Agreement, dated as of January 9, 2012, by and between CHSP TRS Union Square LLC, a Delaware limited liability company (“Union Square Lessee”) and Evolution Hospitality, LLC, a California limited liability company. b) Franchise Agreement, dated as of February 1, 2013, by and between MIF, L.L.C., a Delaware limited liability company, and Union Square Lessee. c) Amended and Restated Lease Agreement, dated as of January 1, 2014, by and between CHSP Union Square LLC, a Delaware limited liability company, and Union Square Lessee. 4. W Chicago – Lakeshore, Chicago, Illinois a) Operating Agreement, dated as of August 21, 2012, by and between CHSP TRS Lakeshore LLC, a Delaware limited liability company (“Lakeshore Lessee”) and W Hotel Management Inc., a Delaware corporation. b) Lease Agreement, dated as of August 21, 2012, by and between CHSP Lakeshore LLC, a Delaware limited liability company, and Lakeshore Lessee. 5. The Hotel Minneapolis, Autograph Collection, Minneapolis, Minnesota a) Management Agreement, dated as of October 30, 2012, by and between CHSP TRS Minneapolis LLC, a Delaware limited liability company (“Minneapolis Lessee”) and Merritt Hospitality, LLC, a Delaware limited liability company, as amended by that First Amendment to Management Agreement dated June 27, 2013, as same may be further amended. b) Relicensing Franchise Agreement, dated as of October 30, 2012, by and between Marriott International, Inc., a Delaware corporation, and Minneapolis Lessee. c) Lease Agreement, dated as of October 30, 2012, by and between CHSP Minneapolis LLC, a Delaware limited liability company, and Minneapolis Lessee. 6. Le Meridien New Orleans, New Orleans, Louisiana a) Amended and Restated Operating Agreement, dated as of April 25, 2013, by and between CHSP TRS New Orleans LLC, a Delaware limited liability company (“New Orleans Lessee”) and Starwood (M) International, Inc., a Delaware corporation. b) Lease Agreement, dated as of April 25, 2013, by and between CHSP New Orleans LLC, a Delaware limited liability company, and New Orleans Lessee. 7. Hyatt Fisherman’s Wharf, San Francisco, California a) Hotel Management Agreement, dated as of September 27, 2013, by and between CHSP TRS Fisherman Wharf LLC, a Delaware limited liability company (“Fisherman Wharf Lessee”) and Evolution Hospitality, LLC, a California limited liability company. b) Franchise Agreement, dated as of May 31, 2013, by and between Hyatt Franchising, L.L.C., a Delaware limited liability company, and Fisherman Wharf Lessee. c) Lease Agreement, dated as of May 31, 2013, by and between CHSP Fisherman Wharf LLC, a Delaware limited liability company, and Fisherman Wharf Lessee. 8. Hyatt Santa Barbara, Santa Barbara, California a) Management Agreement, dated as of June 27, 2013, by and between CHSP TRS Santa Barbara LLC, a Delaware limited liability company (“Santa Barbara Lessee”) and Merritt Hospitality, LLC, a Delaware limited liability company. b) Franchise Agreement, dated as of June 27, 2013, by and between Hyatt Franchising, L.L.C., a Delaware limited liability company, and Santa Barbara Lessee. c) Lease Agreement, dated as of June 27, 2013, by and between CHSP Santa Barbara LLC, a Delaware limited liability company, and Santa Barbara Lessee. 9. W New Orleans – French Quarter, New Orleans, Louisiana a) Operating Agreement, dated as of March 28, 2013, by and between CHSP TRS French Quarter LLC, a Delaware limited liability company (“French Quarter Lessee”) and W Hotel Management Inc., a Delaware corporation. b) Lease Agreement, dated as of March 28, 2013, by and between CHSP French Quarter LLC, a Delaware limited liability company, and French Quarter Lessee. 10. JW Marriott San Francisco Union Square, San Francisco, California a) Assignment and Assumption of Management Agreement, dated as of October 1, 2014, pursuant to which CHSP TRS Union Square II LLC, a Delaware limited liability company (“Union Square II Lessee”), the assignee, assumed the Management Agreement, and amendments thereto, between THI V San Francisco LLC, a Delaware limited liability company, the assignor, and Marriott International, Inc., a Delaware corporation. b) Assignment and Assumption of Ground Lease Agreement, dated as of October 1, 2014, pursuant to which CHSP Union Square II LLC, a Delaware limited liability company, the assignee, assumed the Ground Lease Agreement between THI V San Francisco LLC, the assignor, and The Olympic Club, a California nonprofit corporation. c) Lease Agreement, dated as of October 1, 2014, by and between CHSP Union Square II LLC, a Delaware limited liability company, and Union Square II Lessee. 11. Hyatt Regency Mission Bay Spa and Marina, San Diego, California a) Eighth Amendment to Management Agreement, dated as of September 7, 2012, by and between CHSP TRS Mission Bay LLC, a Delaware limited liability company (“Mission Bay Lessee”) and Hyatt Corporation, a Delaware corporation. b) Consent to Assignment, dated as of September 6, 2012, pursuant to which CHSP Mission Bay LLC, a Delaware limited liability company, the assignee, assumed the City of San Diego Lease Agreement between Kencal Ownership LLC, a California limited liability company, the lessee/assignor, and The City of San Diego, a California municipal corporation. c) Lease Agreement, dated as of September 7, 2012, by and between CHSP Mission Bay LLC, and Mission Bay Lessee. SCHEDULE 7.1(i) LITIGATION None. SCHEDULE 7.1(s) AFFILIATE TRANSACTIONS Affiliate Transactions The Operating Leases identified in Schedule 7.1(h). Agreements for payments that are permitted under Section 10.1(e) Employment agreements and relationships, employee benefits, and compensation arrangements associated therewith, including without limitation: (i) Employment Agreements between Chesapeake Lodging Trust and the Borrower and each of James L. Francis, Douglas W. Vicari, D. Rick Adams, and Graham J. Wootten; (ii) Restricted Shares Agreement for Executive Officers; (iii) Restricted Shares Agreement for Trustees; and (iv) Indemnification Agreement between Chesapeake Lodging Trust and its Trustees and Executive Officers. EXHIBIT A FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of _______, 20__ (the “Agreement”) by and among _________________________ (the “Assignor”), _________________________ (the “Assignee”), CHESAPEAKE LODGING, L.P. (the “Borrower”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”). WHEREAS, the Assignor is a Lender under that certain Fourth Amended and Restated Credit Agreement dated as of __________, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, the financial institutions party thereto and their assignees under Section 13.6 thereof, the Administrative Agent, and the other parties thereto; WHEREAS, the Assignor desires to assign to the Assignee all or a portion of the Assignor’s Commitment under the Credit Agreement, all on the terms and conditions set forth herein; and WHEREAS, the [Borrower and the] Administrative Agent consent[s] to such assignment on the terms and conditions set forth herein. of which hereby are acknowledged by the parties hereto, the parties hereto Section 1. Assignment. (a)    Subject to the terms and conditions of this Agreement and in consideration of the payment to be made by the Assignee to the Assignor pursuant to Section 2 of this Agreement, effective as of ____________, 20__ (the “Assignment Date”) the Assignor hereby irrevocably sells, transfers and assigns to the Assignee, without recourse, a $__________ interest (such interest being the “Assigned Commitment”) in and to the Assignor’s Commitment, and all of the other rights and obligations of the Assignor under the Credit Agreement, such Assignor’s Note, and the other Loan Documents representing ______% in respect of the aggregate amount of all Lenders’ Commitments, including without limitation, a principal amount of outstanding Loans equal to $_________, all voting rights of the Assignor associated with The Assigned Commitment all rights to receive interest on such amount of Loans and all Fees with respect to the Assigned Commitment and other rights of the Assignor under the Credit Agreement and the other Loan Documents with respect to the Assigned Commitment, all as if the Assignee were an original Lender under and signatory to the Credit Agreement having a Commitment equal to the amount of the Assigned Commitment. The Assignee, subject to the terms and conditions hereof, hereby assumes all obligations of the Assignor with respect to the Assigned Commitment as if the having a Commitment equal to the Assigned Commitment, which obligations shall include, but shall not be limited to, the obligation of the Assignor to make Loans to the Borrower with respect to the Assigned Commitment and] the obligation to indemnify the Administrative Agent as provided in the Credit Agreement (the foregoing obligations, together with all other similar obligations more particularly set forth in the Credit Agreement and the other Loan Documents, shall be referred to hereinafter, collectively, as the “Assigned Obligations”). The Assignor shall have no further duties or obligations with respect to, and shall have no further interest in, the Assigned Obligations or the Assigned Commitment from and after the Assignment Date. (b)    The assignment by the Assignor to the Assignee hereunder is without recourse to the Assignor. The Assignee makes and confirms to the Administrative Agent, the Assignor, and the other Lenders all of the representations, warranties and covenants of a Lender under Article XII of the Credit Agreement. Not in limitation of the foregoing, the Assignee acknowledges and agrees that, except as set forth in Section 4 below, the Assignor is making no representations or warranties with respect to, and the Assignee hereby releases and discharges the Assignor for any responsibility or liability for: (i) the present or future solvency or financial condition of the Borrower, any other Loan Party or any other Subsidiary, (ii) any representations, warranties, statements or information made or furnished by the Borrower, any other Loan Party or any other Subsidiary in connection with the Credit Agreement or otherwise, (iii) the validity, efficacy, sufficiency, or enforceability of the Credit Agreement, any Loan Document or any other document or instrument executed in connection therewith, or the collectibility of the Assigned Obligations, (iv) the perfection, priority or validity of any Lien with respect to any collateral at any time securing the Obligations or the Assigned Obligations under the Notes or the Credit Agreement and (v) the performance or failure to perform by the Borrower or any other Loan Party of any obligation under the Credit Agreement or any other Loan Document. Further, the Assignee acknowledges that it has, independently and without reliance upon the Administrative Agent, any other Lender or counsel to the Administrative Agent or any of their respective officers, directors, employees and agents and based on the financial statements supplied by the Borrower and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to become a Lender under the Credit Agreement. The Assignee also acknowledges that it will, Lender and based on such documents and information as it shall deem appropriate action under the Credit Agreement or any Note or pursuant to any other obligation. The Administrative Agent shall have no duty or responsibility whatsoever, either initially or on a continuing basis, to provide the Assignee with any credit or other information with respect to the Borrower, any other Loan Party or any other Subsidiary or to notify the undersigned of any Default or Event of Default except as expressly provided in the Credit Agreement. The Assignee has not relied on the Administrative Agent as to any legal or factual matter in connection therewith or in connection with the transactions contemplated thereunder. Section 2. Payment by Assignee. In consideration of the assignment made pursuant to Section 1. of this Agreement, the Assignee agrees to pay to the Assignor on the Assignment Date, an amount equal to $_________ representing the aggregate principal amount outstanding of the Loans owing to the Assignor under the Credit Agreement and the other Loan Documents being assigned hereby. Section 3. Payments by Assignor. The Assignor agrees to pay to the Administrative Agent on the Assignment Date the administrative fee payable under Section 13.6(c) of the Credit Agreement. Section 4. Representations and Warranties of Assignor. The Assignor hereby represents and warrants to the Assignee that (a) as of the Assignment Date (i) the Assignor is a Lender under the Credit Agreement having a Commitment under the Credit Agreement immediately prior to the Assignment Date, equal to $____________ and that the Assignor is not in default of its obligations under the Credit Agreement; and (ii) the outstanding balance of Loans owing to the Assignor (without reduction by any assignments thereof which have not yet become effective) is $____________, and (b) it is the legal and beneficial owner of the Assigned Commitment which is free and clear of any adverse claim created by the Assignor. Section 5. Representations, Warranties and Agreements of Assignee. The Assignee (a) represents and warrants that it is (i) legally authorized to enter into this Agreement; (ii) an “accredited investor” (as such term is used in Regulation D of the Securities Act) and (iii) an Eligible Assignee; (b) confirms that it has financial statements delivered pursuant thereto and such other documents and information (including without limitation the Loan Documents) as it has deemed Agreement; (c) appoints and authorizes the Administrative Agent to take such action as contractual representative on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof together with such powers as are reasonably incidental thereto; (d) agrees that it will become a party to and shall be bound by the Credit Agreement and the other Loan Documents to which the other Lenders are a party on the Assignment Date and will perform in accordance therewith all of the obligations which are required to be performed by it as a Lender; and (e) is either (i) not organized under the laws of a jurisdiction outside the United States of America or (ii) has delivered to the Administrative Agent (with an additional copy for the Borrower) such items required under Section 3.10 of the Credit Agreement. Section 6. Recording and Acknowledgment by the Administrative Agent. Following the execution of this Agreement, the Assignor will deliver to the Administrative Agent (a) a duly executed copy of this Agreement for acknowledgment and recording by the Administrative Agent and (b) the Assignor’s Note. Upon such acknowledgment and recording, from and after the Assignment Date, the Administrative Agent shall make all payments in respect of the interest assigned hereby (including payments of principal, interest, fees and other amounts) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Assignment Date directly between themselves. Section 7. Addresses. The Assignee specifies as its address for notices and its Lending Office for all Loans, the offices set forth below:                      Attention:                 Telephone No.:             Telecopy No.:                 Section 8. Payment Instructions. All payments to be made to the Assignee under this Agreement by the Assignor, and all payments to be made to the Assignee under the Credit Agreement, shall be made as provided in the Credit Agreement in accordance with the following instructions:                                                                Section 9. Effectiveness of Assignment. This Agreement, and the assignment and assumption contemplated herein, shall not be effective until (a) this Agreement is executed and delivered by each of the Assignor, the Assignee, the Administrative Agent and if required, the Borrower, and (b) the payment to the Assignor of the amounts owing by the Assignee pursuant to Section 2 hereof and (c) the payment to the Administrative Agent of the amounts owing by the Assignor pursuant to Section 3 hereof. Upon recording and acknowledgment of this Agreement by the Administrative Agent, from and after the Assignment Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Agreement, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Agreement, relinquish its rights (except as otherwise provided in Section 13.11 of the Credit Agreement) and be released from its obligations under the Credit Agreement; provided, however, that if the Assignor does not assign its entire interest under the Loan Documents, it shall remain a Lender entitled to all of the benefits and subject to all of the obligations thereunder with respect to its Commitment. Section 10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE. Section 11. Counterparts. This Agreement may be executed in any number of counterparts each of which, when taken together, shall constitute one and the same agreement. Section 12. Headings. Section headings have been inserted herein for convenience only and shall not be construed to be a part hereof. Section 13. Amendments; Waivers. This Agreement may not be amended, changed, waived or modified except by a writing executed by the Assignee and the Assignor. Section 14. Entire Agreement. This Agreement embodies the entire agreement between the Assignor and the Assignee with respect to the subject matter hereof and supersedes all other prior arrangements and understandings relating to the subject matter hereof. Section 15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Section 16. Definitions. Terms not otherwise defined herein are used herein with the respective meanings given them in the Credit Agreement. [Include this Section only if the Borrower’s consent is required under Section 13.6(c) of the Credit Agreement] Section 17. Agreements of the Borrower. The Borrower hereby agrees that the Assignee shall be a Lender under the Credit Agreement having a Commitment equal to the Assigned Commitment. The Borrower agrees that the Assignee shall have all of the rights and remedies of a Lender under the Credit Agreement and the other Loan Documents as if the Assignee were an original Lender under and signatory to the Credit Agreement, including, but not limited to, the right of a Lender to receive payments of principal and interest with respect to the Assigned Obligations, if any, and to the Loans made by the Lenders after the date hereof and to receive the Fees payable to the Lenders as provided in the Credit Agreement. Further, the Assignee shall be entitled to the benefit of the indemnification provisions from the Borrower in favor of the Lenders as provided in the Credit Agreement and the other Loan Documents. The Borrower further agrees, upon the execution and delivery of this Agreement, to execute in favor of the Assignee a Note in an initial amount equal to the Assigned Commitment. Further, the Borrower agrees that, upon the execution and delivery of this Agreement, the Borrower shall owe the Assigned Obligations to the Assignee as if the Assignee were the Lender originally making such Loans and entering into such other obligations. [Signatures on Following Page] IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment and Assumption Agreement as of the date and year first written above. ASSIGNOR: By:     Name:     Title:     Payment Instructions [Bank] [Address] ABA No. : Account No.: Account Name: Reference: ASSIGNEE: By:     Name:     Title:     Payment Instructions [Bank] [Address] ABA No. : Account No.: Account Name: Reference: [Signatures continued on Following Page] Agreed and Consented to as of the date first written above. [Include signature of the Borrower only if required under Section 13.6(c) of the Credit Agreement] BORROWER: a Delaware limited partnership     its general partner By:                         Name:     Title:     Accepted as of the date first written above. ADMINISTRATIVE AGENT: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent By:      Name:     Title:     EXHIBIT B [Reserved] EXHIBIT C FORM OF NOTE $______________    _________, 20__ FOR VALUE RECEIVED, the undersigned, Chesapeake Lodging, L.P., a Delaware limited partnership (the “Borrower”) hereby unconditionally promises to pay to the order of __________________________ (the “Lender”), in care of Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), to Wells Fargo Bank, Minneapolis Loan Center of Administrative Agent, 608 2nd Avenue S., 11th Floor, Minneapolis, MN 55402, Attention: Syndications Manager, or at such other address as may be specified by the Administrative Agent to the Borrower, the principal sum of all Loans made by the Lender to the Borrower pursuant to, and in accordance with the terms of, the Credit Agreement. The Borrower further agrees to pay interest at said office, in like money, on the unpaid principal amount owing hereunder from time to time on the dates and at the rates and at the times specified in the Credit Agreement. This Note is one of the “Notes” referred to in the Fourth Amended and Restated Credit Agreement dated as of ________, 2015 (as amended, restated, supplemented the Borrower, the financial institutions party thereto and their assignees under Section 13.6 thereof, the Administrative Agent, and the other parties thereto, and is subject to, and entitled to, all provisions and benefits thereof. Capitalized terms used herein and not defined herein shall have the respective meanings given to such terms in the Credit Agreement. The Credit Agreement, among other things, (a) provides for the making of Loans by the Lender to the Borrower from time to time in an aggregate amount not to exceed at any time outstanding such Lender’s Commitment as described therein, (b) permits the prepayment of the Loans by the Borrower subject to certain terms and conditions and (c) provides for the acceleration of the Loans upon the occurrence of certain specified events. The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights. Time is of the essence for this Note. [This Note is given in replacement of the Note dated _____ __, 2015, in the original principal amount of $_______ previously delivered to the Lender under the Credit Agreement. THIS NOTE IS NOT INTENDED TO BE, AND SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING UNDER OR IN CONNECTION WITH THE OTHER NOTE.] THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF IN WITNESS WHEREOF, the undersigned has executed and delivered this Note as of the date written above. a Delaware limited partnership     its general partner By:                         Name: Title:     EXHIBIT D FORM OF NOTICE OF BORROWING ____________, 20__ Wells Fargo Bank Minneapolis Loan Center 608 2nd Avenue S., 11th Floor Minneapolis, MN 55402 Attention: Syndications Manager Ladies and Gentlemen: Reference is made to that certain Fourth Amended and Restated Credit Agreement dated as of _________, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Chesapeake Lodging, L.P., a Delaware limited partnership (the “Borrower”), the financial institutions party thereto and their assignees under Section 13.6 thereof (the “Lenders”), Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective meanings given them in the Credit Agreement. 1. Pursuant to Section 2.2 of the Credit Agreement, the Borrower hereby requests that the Lenders make Loans to the Borrower in an aggregate amount equal to $___________________. 2. The Borrower requests that such Loans be made available to the Borrower on ____________, 20__. 3. The Borrower hereby requests that such Loans be of the following Type: [Check one box only]     ¨    Base Rate Loan ¨    LIBOR Loan, with an initial Interest Period for a duration of: ¨ one month ¨ three months ¨ six months The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date hereof, as of the date of the making of the requested Loans, and after making such Loans, (a) no Default or Event of Default exists or would exist, and none of the limits specified in Section 2.16 would be violated; and (b) the representations and warranties made or deemed made by the Borrower and and shall be true and correct with the same force and effect as if made on and as of such date except to the extent that such representations and warranties permitted under the Loan Documents. In addition, the Borrower certifies to the Administrative Agent and the Lenders that all conditions to the making of the requested Loans contained in Article VI of the Credit Agreement will have been satisfied at the time such Loans are made. a Delaware limited partnership     its general partner By:                         Name:     Title:     EXHIBIT E FORM OF NOTICE OF CONTINUATION ____________, 20__ Wells Fargo Bank Minneapolis Loan Center Minneapolis, MN 55402 Attention: Syndications Manager Ladies and Gentlemen: dated as of March 4, 2015 (as amended, restated, supplemented or otherwise Pursuant to Section 2.11 of the Credit Agreement, the Borrower hereby requests a Continuation of Loans under the Credit Agreement, and in that connection sets forth below the information relating to such Continuation as required by such Section of the Credit Agreement: 1. The requested date of such Continuation is ____________, 20__. 2. The aggregate principal amount of the Loans subject to the requested Continuation is $________________________ and the portion of such principal amount subject to such Continuation is $__________________________. 3. The current Interest Period of the Loans subject to such Continuation ends on ________________, 20__. 4. The duration of the Interest Period for the Loans or portion thereof subject to such Continuation is: ¨    one month     ¨    three months     ¨    six months [Continued on next page] as of the date hereof, as of the proposed date of the requested Continuation, and after giving effect to such Continuation, no Default or Event of Default exists or will exist. a Delaware limited partnership     its general partner By:                         Name:     Title:     EXHIBIT F FORM OF NOTICE OF CONVERSION ____________, 20__ Wells Fargo Bank Minneapolis Loan Center Minneapolis, MN 55402 Attention: Syndications Manager Ladies and Gentlemen: Reference is made to the Fourth Amended and Restated Credit Agreement dated as of ________, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Chesapeake Lodging, L.P., a Delaware limited partnership (the “Borrower”), the financial institutions party thereto and their assignees under Section 13.6 thereof (the “Lenders”), Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective meanings given them in the Credit Agreement. Pursuant to Section 2.12 of the Credit Agreement, the Borrower hereby requests a Conversion of Loans of one Type into Loans of another Type under the Credit Agreement, and in that connection sets forth below the information relating to such Conversion as required by such Section of the Credit Agreement: 1. The requested date of such Conversion is ______________, 20__. 2. The Type of Loans to be Converted pursuant hereto is currently: ¨    Base Rate Loan ¨    LIBOR Loan 3. The aggregate principal amount of the Loans subject to the requested Conversion is $_____________________ and the portion of such principal amount subject to such Conversion is $___________________. 4. The amount of such Loans to be so Converted is to be converted into Loans of the following Type: ¨    Base Rate Loan ¨    one month     ¨    three months     ¨    six months as of the date hereof, as of the proposed date of the requested Conversion, and after giving effect to such Conversion, no Default or Event of Default exists or will exist. a Delaware limited partnership     its general partner By:                         Name:     Title:          Loan No. 1002242 EXHIBIT G FORM OF DISBURSEMENT INSTRUCTION AGREEMENT Borrower: CHESAPEAKE LODGING, L.P., a Delaware limited partnership Administrative Agent: Wells Fargo Bank, National Association Loan: Loan number 1002242 made pursuant to that certain "Fourth Amended and Restated Credit Agreement" dated as of March 4, 2015 among Borrower, Chesapeake Lodging Trust, a Maryland real estate investment trust, as Parent Guarantor, Administrative Agent and the Lenders party thereto, as amended from time to time Effective Date: [_________], 2015 Check applicable box: New – This is the first Disbursement Instruction Agreement submitted in connection with the Loan.    Replace Previous Agreement – This is a replacement Disbursement Instruction Agreement. All prior instructions submitted in connection with this Loan are cancelled as of the Effective Date set forth above. This Agreement must be signed by the Borrower and is used for the following purposes: (1) to designate an individual or individuals with authority to request disbursements of Loan proceeds, whether at the time of Loan closing/origination or thereafter; (2) to designate an individual or individuals with authority to request disbursements of funds from Restricted Accounts (as defined in the Terms and Conditions attached to this Agreement), if applicable; and (3) to provide Administrative Agent with specific instructions for wiring or transferring funds on Borrower's behalf. Any of the disbursements, wires or transfers described above are referred to herein as a "Disbursement." Specific dollar amounts for Disbursements must be provided to Administrative Agent at the time of the applicable Disbursement in the form of a signed closing statement, an email instruction or other written communication pursuant to Section 2.2 of the Credit Agreement (each, a "Disbursement Request") from an applicable Authorized Representative (as defined in the Terms and Conditions attached to this Agreement). A new Disbursement Instruction Agreement must be completed and signed by the Borrower if (i) all or any portion of a Disbursement is to be transferred to an account or an entity not described in this Agreement or (ii) Borrower wishes to add or remove any Authorized Representatives. See the Additional Terms and Conditions attached hereto for additional information and for definitions of certain capitalized terms used in this Agreement. Disbursement of Loan Proceeds at Origination/Closing Closing Disbursement Authorizers: Administrative Agent is authorized to accept one or more Disbursement Requests from any of the individuals named below (each, a “Closing Disbursement Authorizer”) to disburse Loan proceeds on or about the date of the Loan origination/closing and to initiate Disbursements in connection therewith (each, a “Closing Disbursement”):   Individual’s Name Title 1.     2.     3.     Describe Restrictions, if any, on the authority of the Closing Disbursement Authorizers (dollar amount limits, wire/deposit destinations, etc.): DESCRIBE APPLICABLE RESTRICTIONS OR INDICATE “N/A” If there are no restrictions described here, any Closing Disbursement Authorizer may submit a Disbursement Request for all available Loan proceeds. DELETE FOLLOWING SECTION IF NO WIRE TRANSFERS AT ORIGINATION/CLOSING Permitted Wire Transfers:  Disbursement Requests for the Closing Disbursement(s) to be made by wire transfer must specify the amount and applicable Receiving Party. Each Receiving Party included in any such Disbursement Request must be listed below. Administrative Agent is authorized to use the wire instructions that have been provided directly to Administrative Agent by the Receiving Party or Borrower and attached as the Closing Exhibit. All wire instructions must be in the format specified on the Closing Exhibit.   Names of Receiving Parties for the Closing Disbursement(s) (may include as many parties as needed; wire instructions for each Receiving Party must be attached as the Closing Exhibit) 1.   2.   3.   DELETE FOLLOWING SECTION IF NO DEPOSITS INTO WFB ACCOUNTS AT ORIGINATION/CLOSING Direct Deposit:  Disbursement Requests for the Closing Disbursement(s) to be deposited into an account at Wells Fargo Bank, N.A. must specify the amount and applicable account. Each account included in any such Disbursement Request must be listed below. Name on Deposit Account: Wells Fargo Bank, N.A. Deposit Account Number: Further Credit Information/Instructions: Disbursement of Loan Proceeds Subsequent to Origination/Closing Subsequent Disbursement Authorizers:   Administrative Agent is authorized to accept one or more Disbursement Requests from any of the individuals named below (each, a "Subsequent Disbursement Authorizer") to disburse Loan proceeds after the date of the Loan origination/closing and to initiate Disbursements in connection therewith (each, a "Subsequent Disbursement"):   Individual’s Name Title 1.     2.     3.     If there are no restrictions described here, any Subsequent Disbursement Authorizer may submit a Disbursement Request for all available Loan proceeds. Borrower acknowledges that all of the information in this Agreement is correct and agrees to the terms and conditions set forth herein and in the Additional Terms and Conditions on the following page. Date: ___________, 20__ BORROWER: a Delaware limited partnership     its general partner By:                         Name:      Title:     Additional Terms and Conditions to the Disbursement Instruction Agreement Definitions. The following capitalized terms shall have the meanings set forth below: "Authorized Representative" means any or all of the Closing Disbursement Authorizers, Subsequent Disbursement Authorizers and Restricted Account Disbursement Authorizers, as applicable. "Receiving Bank" means the financial institution where a Receiving Party maintains its account. "Receiving Party" means the ultimate recipient of funds pursuant to a Disbursement Request. "Restricted Account" means an account at Wells Fargo Bank, N.A. associated with the Loan to which Borrower's access is restricted. Capitalized terms used in these Additional Terms and Conditions to Disbursement Instruction Agreement and not otherwise defined herein shall have the meanings given to such terms in the body of the Agreement. Disbursement Requests. Except as expressly provided in the Credit Agreement, Administrative Agent must receive Disbursement Requests in writing. Disbursement Requests will only be accepted from the applicable Authorized Representatives designated in the Disbursement Instruction Agreement. Disbursement Requests will be processed subject to satisfactory completion of Administrative Agent's customer verification procedures. Administrative Agent is only responsible for making a good faith effort to execute each Disbursement Request and may use agents of its choice to execute Disbursement Requests. Funds disbursed pursuant to a Disbursement Request may be transmitted directly to the Receiving Bank, or indirectly to the Receiving Bank through another bank, government agency, or other third party that Administrative Agent considers to be reasonable. Administrative Agent will, in its sole discretion, determine the funds transfer system and the means by which each Disbursement will be made. Administrative Agent may delay or refuse to accept a Disbursement Request if the Disbursement would: (i) violate the terms of this Agreement; (ii) require use of a bank unacceptable to Administrative Agent or Lenders or prohibited by government authority; (iii) cause Administrative Agent or Lenders to violate any Federal Reserve or other regulatory risk control program or guideline; or (iv) otherwise cause Administrative Agent or Lenders to violate any applicable law or regulation. Limitation of Liability. Administrative Agent and Lenders shall not be liable to Borrower or any other parties for: (i) errors, acts or failures to act of others, including other entities, banks, communications carriers or clearinghouses, through which Borrower's requested Disbursements may be made or information received or transmitted, and no such entity shall be deemed an agent of the Administrative Agent or any Lender; (ii) any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power surges or failures, acts of government, labor disputes, failures in communications networks, legal constraints or other events beyond Administrative Agent's or any Lender's control; or (iii) any special, consequential, indirect or punitive damages, whether or not (A) any claim for these damages is based on tort or contract or (B) Administrative Agent any Lender or Borrower knew or should have known the likelihood of these damages in any situation. Neither Administrative Agent nor any Lender makes any representations or warranties other than those expressly made in this Agreement. IN NO EVENT WILL ADMINISTRATIVE AGENT OR ANY LENDER BE LIABLE FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY IF A DISBURSEMENT REQUEST IS EXECUTED BY ADMINISTRATIVE AGENT IN GOOD FAITH AND IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. Reliance on Information Provided. Administrative Agent is authorized to rely on the information provided by Borrower or any Authorized Representative in or in accordance with this Agreement when executing a Disbursement Request until Administrative Agent has received a new Agreement signed by Borrower. Borrower agrees to be bound by any Disbursement Request: (i) authorized or transmitted by Borrower; or (ii) made in Borrower's name and accepted by Administrative Agent in good faith and in compliance with this Agreement, even if not properly authorized by Borrower. Administrative Agent may rely solely (i) on the account number of the Receiving Party, rather than the Receiving Party's name, and (ii) on the bank routing number of the Receiving Bank, rather than the Receiving Bank's name, in executing a Disbursement Request. Administrative Agent is not obligated or required in any way to take any actions to detect errors in information provided by Borrower or an Authorized Representative. If Administrative Agent takes any actions in an attempt to detect errors in the transmission or content of transfers or requests or takes any actions in an attempt to detect unauthorized Disbursement Requests, Borrower agrees that, no matter how many times Administrative Agent takes these actions, Administrative Agent will not in any situation be liable for failing to take or correctly perform these actions in the future, and such actions shall not become any part of the Disbursement procedures authorized herein, in the Loan Documents, or in any agreement between Administrative Agent and Borrower. International Disbursements. A Disbursement Request expressed in US Dollars will be sent in US Dollars, even if the Receiving Party or Receiving Bank is located outside the United States. Administrative Agent will not execute Disbursement Requests expressed in foreign currency unless permitted by the Credit Agreement. Errors. Borrower agrees to notify Administrative Agent of any errors in the Disbursement of any funds or of any unauthorized or improperly authorized Disbursement Requests within fourteen (14) days after Administrative Agent's confirmation to Borrower of such Disbursement. Finality of Disbursement Requests. Disbursement Requests will be final and will not be subject to stop payment or recall; provided that Administrative Agent may, at Borrower's request, make an effort to effect a stop payment or recall but will incur no liability whatsoever for its failure or inability to do so. CLOSING EXHIBIT WIRE INSTRUCTIONS ADMINISTRATIVE AGENT TO ATTACH WIRE INSTRUCTIONS FROM RECEIVING PARTIES All wire instructions must contain the following information: Transfer/Deposit Funds to (Receiving Party Account Name) Receiving Party Deposit Account Number Receiving Bank Name, City and State   Receiving Bank Routing (ABA) Number Further identifying information, if applicable (title escrow number, borrower name, loan number, etc.) SUBSEQUENT DISBURSEMENT EXHIBIT WIRE INSTRUCTIONS   RESTRICTED ACCOUNT DISBURSEMENT EXHIBIT WIRE INSTRUCTIONS   EXHIBIT H Reserved EXHIBIT I FORM OF COMPLIANCE CERTIFICATE of March 4, 2015 (as amended, restated, supplemented or otherwise modified from (the “Borrower”), the financial institutions party thereto and their assignees under Section 13.6 thereof (the “Lenders”), Wells Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective meanings given to them in the Credit Agreement. Pursuant to Section 9.3 of the Credit Agreement, the undersigned hereby certifies to the Administrative Agent and the Lenders that: 1.    (a) The undersigned has reviewed the terms of the Credit Agreement and has made a review of the transactions, financial condition and other affairs of the Parent Guarantor and its Subsidiaries as of, and during the relevant accounting period ending on, _______________, 20__ and (b) such review has not disclosed the existence during such accounting period, and the undersigned does not have knowledge of the existence, as of the date hereof, of any condition or event constituting a Default or Event of Default [except as set forth on Attachment A hereto, which accurately describes the nature of the conditions(s) or event(s) that constitute (a) Default(s) or (an) Event(s) of Default and the actions which the Borrower (is taking)(is planning to take) with respect to such condition(s) or event(s)]. 2.    Schedule 1 attached hereto accurately and completely sets forth the calculations required to establish compliance with Section 10.1 of the Credit Agreement on the date of the financial statements for the accounting period set forth above or as of the date hereof, as applicable. 3.    (a) No Default or Event of Default exists, and (b) the representations and warranties of the Borrower and the other Loan Parties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, except to the extent such representations or warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Credit Agreement or the other Loan Documents. IN WITNESS WHEREOF, the undersigned has signed this Compliance Certificate on and as of ___________, 20__. BORROWER: a Delaware limited partnership     its general partner By:                         Name:     Title:     EXHIBIT J-1 FORM OF U.S. TAX COMPLIANCE CERTIFICATE Purposes) Reference is hereby made to the Fourth Amended and Restated Credit Agreement dated as of March 4, 2015 (as amended, supplemented or otherwise modified from (the “Borrower”), each of the financial institutions initially a signatory thereto together with their assignees under Section 13.6 thereof (the “Lenders”), Wells Fargo Bank, National Association, as the Administrative Agent (the “Administrative Agent”), and the other parties thereto. Pursuant to the provisions of Section 3.10 of the Credit Agreement, the W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. By:     Name:     Title:     Date: ________ __, 20__ EXHIBIT J-2 Purposes) (the “Administrative Agent”), and the other parties thereto..    Code. non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. By:     Name:     Title:     EXHIBIT J-3 Purposes)      accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in calendar years preceding such payments. By:     Name:     Title:     EXHIBIT J-4    undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the Agreement or any other Loan Document, neither the undersigned nor any of its Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly By:     Name:     Title:     EXHIBIT B REAFFIRMATION OF SUBSIDIARY GUARANTY April 21, 2017 Each of the undersigned Subsidiary Guarantors hereby acknowledges receipt of a copy of the foregoing First Amendment to Fourth Amended and Restated Credit Agreement with respect to that certain Fourth Amended and Restated Credit Agreement dated as of March 4, 2015 by and among CHESAPEAKE LODGING, L.P., a Delaware limited partnership (together with its successors and assigns, the “Borrower”), CHESAPEAKE LODGING TRUST, a Maryland real estate investment trust (the “Parent Guarantor”), each of the financial institutions initially a signatory to the Credit Agreement (as defined below) together with their successors and assigns under Section 13.6 of the Credit Agreement (the “Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Administrative Agent (in such capacity, the “Administrative Agent”) (as amended and as the same the “Credit Agreement”), which First Amendment to Fourth Amended and Restated Credit Agreement is dated as of the date hereof (the “Amendment”). Capitalized terms used in this Reaffirmation and not defined herein shall have the meanings given to them in the Credit Agreement. Without in any way establishing a course of dealing by the Administrative Agent or any Lender, each of the undersigned Subsidiary Guarantors reaffirms the terms and conditions of the Subsidiary Guaranty and any other Loan Document executed by it and acknowledges and agrees that such agreement and each and every such Loan Document executed by the undersigned Subsidiary Guarantors in connection with the Credit Agreement remains in full force and effect and is hereby reaffirmed, ratified and confirmed. All references to the Credit Agreement contained in the above-referenced documents shall be a reference to the Credit Agreement as so modified by the Amendment and as the same may from time to time hereafter be amended, modified or restated. *** IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this Reaffirmation of Subsidiary Guaranty to be duly executed and delivered as of the date first written above. SUBSIDIARY GUARANTORS: CHSP SEATTLE LLC, Title: Secretary CHSP SAN DIEGO LLC, Title: Secretary CHSP UNION SQUARE LLC, Title: Secretary          CHSP LAKESHORE LLC, Title: Secretary CHSP MINNEAPOLIS LLC, Title: Secretary Signature Page to Reaffirmation of Subsidiary Guaranty CHSP NEW ORLEANS LLC, Title: Secretary CHSP FISHERMAN WHARF LLC, Title: Secretary CHSP SANTA BARBARA LLC, Title: Secretary CHSP FRENCH QUARTER LLC, Title: Secretary CHSP UNION SQUARE II LLC, Title: Secretary CHSP MISSION BAY LLC, Title: Secretary CHSP LOS ANGELES II LLC, Title: Secretary CHSP NAVY YARD LLC, Title: Secretary RP HOTEL HOLDINGS, LLC, Title: Secretary

Exhibit 10.1 KILROY REALTY CORPORATION 2006 INCENTIVE AWARD PLAN RESTRICTED STOCK UNIT AGREEMENT GRANT NOTICE Pursuant to this Restricted Stock Unit Agreement (together with Appendices A and B attached hereto, this “Agreement”), effective as of the Grant Date (as defined below), Kilroy Realty Corporation (the “Company”) hereby grants to [______________] (the “Participant”) the following award of Restricted Stock Units (“RSUs”), subject to the terms and conditions of the Company’s 2006 Incentive Award Plan (as amended, and as may be amended from time to time, the “Plan”), the terms and conditions of each of which are hereby incorporated into this Agreement by reference. Each RSU is hereby granted in tandem with a corresponding Dividend Equivalent right, as further described in Section 3 of Appendix A attached hereto. Except as otherwise expressly provided herein, all capitalized terms used in this Agreement shall have the meanings provided in the Plan. Subject to the terms and conditions of this Agreement, the principal features of this award of RSUs are as follows: Number of RSUs: [_______] Grant Date: [___________] (the “Grant Date”) Vesting of RSUs: [____%] of the total number of RSUs (rounded down to the nearest whole RSU) will be “Time-Vest RSUs” and the remaining [____%] of the total number of RSUs (rounded up to the nearest whole RSU) will be “Performance-Vest RSUs,” which shall vest and become nonforfeitable, as follows: (i) Time-Vest RSUs. The Time-Vest RSUs shall vest in four substantially equal installments (rounded down to the nearest whole RSU until the last installment) on each applicable Vesting Date. (ii) Performance-Vest RSUs. The Performance-Vest RSUs are subject to performance- and time-based vesting requirements. The performance-based vesting requirements are set forth on Appendix B hereto, and to the extent such performance requirements are satisfied, the Eligible Performance-Vest RSUs (as defined in Appendix B) shall vest in one lump sum (rounded down to the nearest whole RSU) on the applicable Vesting Date. (iii) Accelerated Vesting in Connection With Qualifying Terminations. Notwithstanding the foregoing or anything contained herein to the contrary, the RSUs shall be subject to accelerated vesting as provided below in this Grant Notice. “Vesting Date” means (i) with respect to Time-Vest RSUs, each of January 5, 2015, January 5, 2016, January 5, 2017, and January 5, 2018, (ii) with respect to Performance-Vest RSUs, the first date on which the Committee determines that the performance vesting conditions applicable to such RSUs have been achieved by the Company following December 31, 2016 (which determination shall be made by the Committee during the first quarter of 2017), provided that if a “change of control event” (within the meaning of Code Section 409A) with respect to the Company occurs before such date, then the Vesting Date of the Performance-Vest RSUs shall be December 31, 2016, and (iii) with respect to all RSUs, any date on which accelerated vesting occurs with respect to such RSUs as provided below in this Grant Notice. Certain Terminations of Employment or Service: Except as described below in connection with certain terminations of the Participant’s employment or services, the Participant must continue to provide services as an Employee, Consultant or member of the Board through each applicable Vesting Date in order to vest in the applicable installment of Time-Vest RSUs and Eligible Performance-Vest RSUs. The rules set forth below shall apply in the event of a Qualifying Termination. A “Qualifying Termination” means that (1) the Participant’s employment by the Company is terminated by the Company without Cause (as such term is defined in the Participant’s employment agreement with the Company (the “Employment Agreement”)) or by the Participant with Good Reason (as defined in the Employment Agreement), (3) while employed by the Company, the Participant dies or becomes “disabled” (within the meaning of Code Section 409A), [or (3) in the event of the Participant’s Retirement (as defined in the Employment Agreement).] [Include only if the Participant is a party to an Employment Agreement that provides for accelerated vesting of the Company's time-based equity awards granted to the Participant in the event of the Participant’s Retirement.] Subject to the release requirement set forth below, in the event of the Participant’s Qualifying Termination: • The unvested Time-Vest RSUs that are outstanding immediately prior to such Qualifying Termination shall fully vest and become nonforfeitable immediately prior to such Qualifying Termination, and, as to the time-based vesting requirements applicable to the unvested Performance-Vest RSUs that are outstanding immediately prior to such Qualifying Termination, such time-based vesting requirements shall be considered fully satisfied immediately prior to such Qualifying Termination. • In the event of a Qualifying Termination before December 31, 2016 and prior to a “change of control event” (within the meaning of Code Section 409A) with respect to the Company, the performance period applicable to the Performance-Vest RSUs shall end in connection with such Qualifying Termination and the number of Eligible Performance-Vest RSUs shall be determined in accordance with Appendix B hereto, as modified by this paragraph. (Capitalized terms used in this paragraph and not otherwise defined are used as defined in Appendix B.) If the Qualifying Termination occurs on or before June 30, 2014, the applicable percentage based on the Company’s FFO Per Share performance shall be deemed to be 100%. If the Qualifying Termination occurs after June 30, 2014, and before December 31, 2014, the FFO Per Share measurement/target levels set forth in Appendix B shall be pro-rated for a short performance period ending with the 2 quarter prior to the quarter in which the Qualifying Termination occurs, and the applicable percentage based on the Company’s FFO Per Share performance shall be determined based on the Company’s actual FFO Per Share for that short performance period against such pro-rated measurement/target levels. In addition, the applicable percentage determined based on the Company’s TSR Percentile Ranking shall be based on any year of the three (3)-year period relevant for such determinations that are completed prior to the date of the Qualifying Termination, and the short year in which the Qualifying Termination occurs (with the applicable Ending Prices determined as of the date of the Qualifying Termination for purposes of determining TSRs and the TSR Percentile for such short year). (For purposes of clarity, if a Qualifying Termination occurred on June 30, 2014, for example, there would be no completed year of the three (3)-year period and the TSR Percentile Ranking would be determined solely with respect to the short period of approximately six (6) months ending with the date of the Qualifying Termination.) • The benefits provided by the preceding two paragraphs are subject to the condition that the Participant (or, in the event of the Participant’s death or disability, the Participant’s estate or personal representative, as the case may be) provide the Company with, and the Participant (or his estate or personal representative, as the case may be) does not revoke, a general release in substantially the form attached to the Participant’s Employment Agreement (or, if no such form is attached to the Employment Agreement, in a form prescribed by the Company). Such general release shall be provided to the Participant (or his estate or personal representative, as the case may be) within five (5) days of the Qualifying Termination date and the Participant (or his estate or personal representative, as the case may be) shall execute and deliver to the Company the general release within thirty (30) days after the Company provides the release to the Participant. In the event this paragraph applies and the general release (and the expiration of any revocation rights provided therein or pursuant to applicable law) could become effective in one of two taxable years depending on when the Participant (or his estate or personal representative, as the case may be) executes and delivers the release, any payment conditioned on the release shall not be earlier than the first business day of the later of such two tax years. (For purposes of this Agreement, “business day” means a calendar day other than a Saturday, Sunday or Federal holiday.) Payment of RSUs: Vested RSUs shall be paid to the Participant in the form of shares of Stock or in cash in an amount equal to the value of the shares of Stock otherwise deliverable, in any case, as set forth in Section 6 of Appendix A attached hereto. Employment Agreement: The Time-Vest RSUs shall be subject to any accelerated vesting protections afforded to the Participant in his Employment Agreement, in addition to the protections set forth above in this Grant Notice. The Performance-Vest RSUs, however, shall be subject to the termination of employment rules set forth in this Agreement (including Appendix A) and not any severance, accelerated vesting, or similar provisions of any Employment Agreement. As to the Performance-Vest RSUs, any provision of an Employment Agreement 3 giving the Participant “better of” (or similar) treatment (e.g., the better of the severance protections afforded in the Employment Agreement or the applicable award agreement) shall not apply. To the extent the Participant’s Employment Agreement includes, as a component of any severance that may be payable to the Participant pursuant to the Employment Agreement, a measure based on “Annual Incentives” or similar measure that includes the value of equity awards granted during a prescribed period of time, in determining such Annual Incentives (or similar) for the Participant, the grant date fair value of the RSUs (as determined by the Company as of the Grant Date based on its customary accounting principles, and assuming that the RSUs were accounted for under FASB ASC Topic 718) shall be taken into account (to the extent that the value of equity awards granted during the year in which the Grant Date occurs are relevant such purposes), and in no event shall the actual payment of the RSUs be taken into account for purposes of any determination of such Annual Incentives (or similar). The provisions of this paragraph control in the event of any inconsistency with an Employment Agreement and notwithstanding anything in an Employment Agreement to the contrary. Each Employment Agreement is deemed amended to the extent (if any) necessary to give effect to this paragraph. The Participant specifically agrees with this paragraph and agrees that the grant of the RSUs satisfies the Company’s equity award grant obligations to the Participant through 2014. The Participant’s signature below indicates the Participant’s agreement with and understanding that this award of RSUs is subject to all of the terms and conditions contained in the Plan and in this Agreement (including Appendix A). In addition, by signing below, the Participant acknowledges that the Company, in its sole discretion, may satisfy any withholding obligations in accordance with Section 7 of Appendix A attached to this Agreement by (i) withholding shares of Stock otherwise issuable to the Participant upon payment of the RSUs in accordance with Appendix A attached to this Agreement (if any) or (ii) using any other method permitted by Section 7 of Appendix A attached to this Agreement or the Plan. If the Participant is married, his or her spouse has signed the Consent of Spouse attached to this Agreement as Exhibit A. THE PARTICIPANT FURTHER ACKNOWLEDGES THAT THE PARTICIPANT HAS READ AND UNDERSTANDS THE PLAN AND THIS AGREEMENT, WHICH CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS GRANT OF RSUs AND DIVIDEND EQUIVALENT RIGHTS. KILROY REALTY CORPORATION, a Maryland corporation ________________________________ PARTICIPANT: _________________________________ KILROY REALTY CORPORATION, a Maryland corporation     ________________________________ 4 APPENDIX A TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS AND DIVIDEND EQUIVALENT RIGHTS 1.    Grant. The Company hereby grants to the Participant, as of the Grant Date, an award of [__________] RSUs and corresponding Dividend Equivalent rights, subject to the terms and conditions contained in this Agreement and the Plan. 2.    RSUs. Each RSU that vests on an applicable Vesting Date shall represent the right to receive, as determined by the Committee in accordance with Section 6 below, either (i) a payment of one share of Stock or (ii) a payment in cash equal to the Fair Market Value of one share of Stock on the applicable Distribution Date (as defined below). (“Fair Market Value” for purposes of the RSUs means the closing price, in regular trading, of a share of Stock on the relevant date on the principal national securities exchange on which the Stock is then listed. If Fair Market Value is to be determined as of a particular date with respect to the RSUs, and such date falls on a weekend or other date on which such exchange is not open for trading, Fair Market Value shall be determined as of the immediately preceding day on which such exchange was open for trading. In the event the Stock is not listed on a national securities exchange on the relevant date, Fair Market Value shall be such fair market value established for the Stock by the Committee, acting in good faith, as of the relevant date.) Unless and until an RSU vests, the Participant will have no right to payment in respect of any such RSU (other than with respect to any Dividend Equivalent rights). Prior to actual payment in respect of any vested RSU, such RSU will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company. 3.    Dividend Equivalent Rights. (a)    Each RSU granted hereunder is hereby granted in tandem with a corresponding Dividend Equivalent right. Such Dividend Equivalent right shall entitle the Participant to have a hypothetical bookkeeping account (established and maintained for purposes of tracking the RSUs and any additional RSUs credited to such account in respect of Dividend Equivalent rights in accordance with this Section 3 (the “Account”)) that is credited upon the Company’s payment of dividends to stockholders of outstanding shares of Stock if the Dividend Equivalent right is or was outstanding on the applicable Stock record date. Subject to Section 3(c) below, when such dividends are so declared, the following shall occur: (i)    on the date that the Company pays a cash dividend in respect of outstanding shares of Stock, the Company shall credit the Participant’s Account with a number of full and fractional RSUs equal to the quotient of (A) the total number of RSUs credited to the Account but not yet distributed (including any RSUs granted hereunder and any additional RSUs credited with respect to Dividend Equivalent rights), multiplied by the per share dollar amount of such dividend, divided by (B) the Fair Market Value of a share of Stock on the date such dividend is paid, (ii)    on the date that the Company pays a Stock dividend in respect of with a number A-1 of full and fractional RSUs equal to the product of (A) the total number of RSUs credited to the Account but not yet distributed (including any RSUs granted hereunder and any additional RSUs credited with respect to Dividend Equivalent rights), multiplied by (B) the number of shares of Stock distributed with respect to such dividend per share of Stock, or (iii)    on the date that the Company pays any other type of distribution in respect of outstanding shares of Stock, the Company shall credit the Participant’s Account in an equitable manner based on the total number of RSUs held in the Account, as determined in the sole discretion of the Committee. (b)    To the extent that any additional RSUs are credited to the Participant’s Account in respect of the Participant’s Dividend Equivalent rights, such additional RSUs shall be subject to the same vesting terms as the original RSUs to which they relate (e.g., additional RSUs credited in respect of Time-Vest RSUs will be subject to the same time-based vesting requirements as the underlying Time-Vest RSUs, while additional RSUs credited in respect of Performance-Vest RSUs will be subject to the same performance- and time-based vesting requirements as the underlying Performance-Vest RSUs) and shall also carry corresponding Dividend Equivalent rights. (c)    Dividend Equivalent rights shall remain outstanding from the Grant Date (or later date of grant of such Dividend Equivalent right in connection with the Company’s payment of a dividend) through the earlier to occur of (i) the termination or forfeiture for any reason of the RSU to which such Dividend Equivalent right corresponds, or (ii) the delivery to the Participant of payment for the RSU (in accordance with Section 6 below) to which such Dividend Equivalent right corresponds. For the avoidance of doubt, if a Dividend Equivalent right terminates after the applicable Stock record date for a Company dividend (other than due to the termination or forfeiture of the RSU to which such Dividend Equivalent right corresponds) and prior to the corresponding payment date thereof, the Participant shall still be entitled to payment of the Dividend Equivalent right amount determined in accordance with this Section 3, if and when the Company pays the underlying dividend; provided, however, that such Dividend Equivalent right amount shall be made in cash (rather than RSUs). (d)    Dividend Equivalent rights and any amounts that may become distributable in respect thereof shall be treated separately from the RSUs and the rights arising in connection therewith for purposes of the designation of time and form of payments required by Code Section 409A. 4.    Vesting. The RSUs shall vest in accordance with the vesting schedule provided in the Grant Notice to which this Appendix is attached. 5.    Termination of RSUs. Upon the Participant’s termination as an Employee, Consultant or member of the Board, as applicable, all RSUs that have not vested as of such termination (taking into consideration any vesting that may occur in connection with such termination as provided in the Grant Notice) shall automatically be forfeited and canceled without payment of consideration therefor. A-2 6.    Distribution. (a)    Distribution Date. [Subject to Sections 6(d) and Section 10 below, payment with respect to RSUs issued under this Agreement (including any RSUs issued in respect of Dividend Equivalent rights) shall, to the extent vested, be paid to the Participant on or within sixty (60) days following the earliest to occur of (i) the date of the Participant’s “separation from service” within the meaning of Code Section 409A (a “Separation from Service”); (ii) the date of the occurrence of a “change of control event” (within the meaning of Code Section 409A) with respect to the Company; [and] (iii) the date of the Participant’s death or “disability” (within the meaning of Code Section 409A)[Add if Company elects a fixed date distribution:, and (iv) [______________]] (any such date, a “Distribution Date”).] (b)    Distribution Payments. All distributions upon payment of the RSUs shall be made by the Company in the form of whole shares of Stock, and to the extent that any fractional RSUs become payable on a Distribution Date, such fractional RSUs shall be paid in cash (unless otherwise determined under Section 15.10 of the Plan); provided, however, that if, as of the applicable Distribution Date, insufficient shares of Stock remain available under the Share Limit to cover payment of any or all of the RSUs for which payment is required (including with respect to Dividend Equivalent rights), as determined by the Committee, such RSUs shall be paid in cash in an amount equal to the Fair Market Value as of the Distribution Date of the shares of Stock otherwise distributable on such Distribution Date. To the extent that any outstanding RSUs remain unvested as of an applicable Distribution Date (after taking into consideration any vesting which may occur in connection with the occurrence of such Distribution Date), then such RSUs shall, to the extent not forfeited in connection with such distribution, be paid as Restricted Stock, and the vesting schedule that applied to such RSUs immediately prior to such distribution shall continue to apply to such Restricted Stock; provided, however, that to the extent any such distributions are payable in cash in accordance with this Section 6(b), such cash amounts (determined as of the Distribution Date) shall instead be paid to the Participant on or within sixty (60) days after the date(s) on which the shares of Restricted Stock to which such cash payments relate would have vested in accordance with this Section 6(b) (and such cash payments shall be forfeitable on the same terms that would otherwise apply to such Restricted Stock). (c)    Unforeseeable Emergency. If the Participant experiences an “unforeseeable emergency” within the meaning of Code Section 409A (an “Unforeseeable Emergency”), the Committee may, in its sole discretion, permit an early distribution of that portion of the Participant’s vested RSUs reasonably necessary to satisfy the emergency need giving rise to the Unforeseeable Emergency, including any taxes or penalties reasonably anticipated to result from such distribution and taking into consideration any funds that may become available as a result of the termination of the applicable deferral election in connection with such distribution. (d)    Distributions Following Separations from Service. Notwithstanding anything herein to the contrary, no distribution hereunder shall be made to the Participant during the six (6)-month period following the Participant’s Separation from Service to the extent that the Company determines that paying such amounts at the time set forth in this Section 6 would A-3 be a prohibited distribution under Code Section 409A(a)(2)(B)(i). If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such six (6)-month period (or such earlier date upon which such amount can be paid under Code Section 409A without resulting in a prohibited distribution, including as a result of the Participant’s death), the Company shall pay the Participant the cumulative amounts that would have otherwise been payable to the Participant during such period. (e)    Distribution Timing. The time of distribution of the RSUs under this Agreement may not be changed except as may be permitted by the Committee in accordance with the Plan and Code Section 409A and the applicable Treasury Regulations promulgated thereunder. For purposes of clarity, no provision of the Plan (including, without limitation, Section 11.2 thereof) shall alter the time of distribution of the RSUs under this Agreement, except as the Committee may provide consistent with the preceding sentence. 7.    Tax Withholding. The Company shall have the authority and the right to deduct, withhold or require the Participant or Beneficiary to remit to the Company an amount sufficient to satisfy federal, state, local and foreign taxes (including without limitation any income and employment tax obligations) required by law to be withheld with respect to any taxable event arising in connection with the RSUs and/or the Dividend Equivalent rights. To the extent that such obligations arise at the time that the RSUs are paid to the Participant in shares of Stock, the Company may, in its sole discretion and in satisfaction of the foregoing requirement, require the Participant to deliver shares of Stock otherwise issuable under this Agreement (or allow the return of shares of Stock) having a Fair Market Value equal to the sums required to be withheld, provided, that the number of shares of Stock which may be so withheld (or returned) with respect to a taxable event arising in connection with the RSUs and/or the Dividend Equivalent rights shall be limited to the number of shares which have a Fair Market Value on the date of withholding equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state and local income tax and payroll tax purposes that are applicable to such supplemental taxable income. 8.    Rights as Stockholder. Neither the Participant nor any person claiming under or through the Participant will have any of the rights or privileges of a stockholder of the Company in respect of any shares of Stock deliverable hereunder unless and until certificates representing such shares of Stock will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to the Participant or any person claiming under or through the Participant. 9.    Non-Transferability. Neither the RSUs or Dividend Equivalent rights nor any interest or right therein or part thereof shall be transferred, assigned, pledged or hypothecated by the Participant in any way in favor of any party other than the Company or a Subsidiary (whether by operation of law or otherwise) and shall not be subjected to any lien, obligation or liability of the Participant to any party other than the Company or a Subsidiary, other than by the laws of descent and distribution. Upon any attempt by the Participant to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale by the Participant under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby shall immediately become null and void. Notwithstanding the foregoing, the Company may assign any of its rights under this Agreement A-4 to single or multiple assignees and this Agreement shall inure to the benefit of the successors and assigns of the Company. 10.    Distribution of Stock. In the event shares of Stock are paid to the Participant in accordance herewith, the Company shall not be required to record any shares of Stock in the name of the Participant in the books and records of the Company’s transfer agent, and the Company shall not be required to issue or deliver any certificate or certificates for any shares of Stock prior to the fulfillment of all of the following conditions: (a) the admission of such shares to listing on all stock exchanges on which the Company’s common stock is then listed, (b) the completion of any registration or other qualification of such shares under any state or federal law or under rulings or regulations of the Securities and Exchange Commission or other governmental regulatory body, which the Company shall, in its sole and absolute discretion, deem necessary and advisable, (c) the obtaining of any approval or other clearance from any state or federal governmental agency that the Company shall, in its absolute discretion, determine to be necessary or advisable, and (d) the lapse of any such reasonable period of time following the Distribution Date as the Company may from time to time establish for reasons of administrative convenience. In the event that the Company delays a distribution or payment in settlement of RSUs because it determines that the issuance of shares of Stock in settlement of such RSUs will violate federal securities laws or other applicable law, such distribution or payment shall be made at the earliest date at which the Company reasonably determines that the making of such distribution or payment will not cause such violation, as required by Treasury Regulation Section 1.409A-2(b)(7)(ii). No payment shall be delayed under this Section 10 if such delay will result in a violation of Code Section 409A. 11.    No Right to Continued Service. Nothing in the Plan or in this Agreement shall confer upon the Participant any right to continue as an Employee, Consultant, member of the Board, or other service provider of the Company or any Subsidiary, or shall interfere with or restrict in any way the rights of the Company or any Subsidiary, which are hereby expressly reserved, to discharge the Participant at any time for any reason whatsoever, with or without Cause, except to the extent expressly provided otherwise in a written agreement between the Participant and the Company or any Subsidiary. 12.    Severability. In the event that any provision in this Agreement is held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Agreement, which shall remain in full force and effect. 13.    Tax Consultation. The Participant understands that he or she may suffer adverse tax consequences in connection with the RSUs and Dividend Equivalent rights granted pursuant to this Agreement. The Participant represents that the Participant has consulted with any tax consultants that he or she deems advisable in connection with the RSUs and the Dividend Equivalent rights and that the Participant is not relying on the Company for tax advice. 14.    Amendment. Subject to Sections 16 and 18 below, this Agreement may only be amended, modified or terminated by a writing executed by the Participant and by a duly authorized representative of the Company. A-5 15.    Relationship to other Benefits. Neither the RSUs, the Dividend Equivalent rights, nor payment in respect of the foregoing shall be taken into account in determining any benefits pursuant to any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary. 16.    Code Section 409A. To the extent that the Company determines that any RSUs and/or Dividend Equivalent rights may not be compliant with or exempt from Code Section 409A, the Company may amend this Agreement in a manner intended to comply with the requirements of Code Section 409A or an exemption therefrom (including amendments with retroactive effect), or take any other actions as it deems necessary or appropriate to (a) comply with the requirements of Code Section 409A and/or (b) exempt the RSUs and/or the Dividend Equivalent rights from Code Section 409A and/or preserve the intended tax treatment of the benefits provided with respect to the RSUs. To the extent applicable, this Agreement shall be interpreted in accordance with the provisions of Code Section 409A. 17.    Clawback. The Participant agrees that all compensation paid or payable to the Participant pursuant to this Agreement shall be subject to (a) the provisions of any claw-back policy implemented by the Company to comply with applicable law or regulation (including stock exchange rules), including, without limitation, any claw-back policy adopted to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder, and (b) any other claw-back required by applicable law. 18.    Conformity to Securities Laws. The Participant acknowledges that the Plan and this Agreement are intended to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act, and any and all regulations and rules promulgated by the Securities and Exchange Commission thereunder, as well as all applicable state 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. 19.    Notices. Any notice to be given under the terms of this Agreement to the Company at the Company’s principal office, and any notice to be given to the Participant shall be addressed to the Participant at the Participant’s last address reflected on the Company’s records. Any notice shall be deemed duly given when sent via email or when sent by reputable overnight courier or by certified mail (return receipt requested) through the United States Postal Service. 20.    Entire Agreement. The Plan and this Agreement (including all exhibits and appendices hereto) constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof. 21.    Governing Law. The laws of the State of Maryland shall govern the interpretation, validity, administration, enforcement and performance of the 22.    Captions. Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. A-6 EXHIBIT A CONSENT OF SPOUSE I, ____________________, spouse of _______________, have read and approve the foregoing Agreement. In consideration of issuing to my spouse the Restricted Stock Units and Dividend Equivalent rights set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to the exercise of any rights under the Agreement and agree to be bound by the provisions of the Agreement insofar as I may have any rights in said Agreement and any Restricted Stock Units, Dividend Equivalent rights, shares of Kilroy Realty Corporation or cash issued pursuant thereto under the community property laws or similar laws relating to marital property in effect in the state of our residence as of the date of the signing of the foregoing Agreement. Dated: _______________, _____            ________________________________ Signature of Spouse APPENDIX B PERFORMANCE VESTING REQUIREMENTS The percentage of the Performance-Vest RSUs (if any) that will be eligible to vest on the Vesting Date as set forth in the Agreement (i.e., the number of “Eligible Performance-Vest RSUs”) will be determined as follows: (1) the number of Performance-Vest RSUs (as set forth in or determined under the Grant Notice) will be multiplied by the applicable percentage determined in accordance with the following table based on the Company’s FFO Per Share for its 2014 year: If the Company’s FFO Per Share for 2014 is: The applicable percentage is: [___] 150% [___] 100% [___] 50% [___] 0% (Zero) For FFO Per Share amounts between the levels indicated, the applicable percentage will be determined on a pro-rata basis between points. (2) the number of RSUs determined as provided in clause (1) above will be multiplied by the applicable percentage determined in accordance with the following table based on the Company’s TSR Percentile Ranking (for the period 2014-2016): If the Company’s TSR Percentile Ranking is: The 80th percentile or greater. 133.3333% The 40th percentile or greater, but equal to or less than the 60th percentile. 100% (no modification) The 20th percentile or lower 66.6666% For a TSR Percentile Ranking between the levels indicated, the applicable (3) the number of RSUs determined as provided in clause (2) above will be rounded down to the nearest whole RSU. B-1 For example, if the Company’s FFO Per Share for 2014 is $[___], and 100 Performance-Vest RSUs are subject to the award as determined in accordance with the Grant Notice, the number of RSUs determined pursuant to clause (1) above would be 125 (100 multiplied by the applicable percentage of 125% corresponding to that FFO Per Share amount). If the Company’s TSR Percentile Ranking was at the 70th percentile, then the number of Eligible Performance-Vest RSUs would be 146 (125 multiplied by the applicable percentage of 116.66665% corresponding to that TSR Percentile Ranking, rounded to the nearest whole RSU). On the other hand, if the Company’s TSR Percentile Ranking was at the 20th percentile or lower, then the number of Eligible Performance-Vest RSUs would be 83 (125 multiplied by the applicable percentage of 66.6666% corresponding to that TSR Percentile Ranking, rounded to the nearest whole RSU). For purposes of clarity, if the Company’s FFO Per Share for 2014 is less than $[___], then none of the Performance-Vest RSUs will be eligible for vesting on the Vesting Date (i.e., the number of Eligible Performance-Vest RSUs is zero). Determination. The Committee will determine the number of Eligible Performance-Vest RSUs in accordance with the provisions of this Appendix B and, in the event of any ambiguity or discrepancy, the determination of the Committee shall be final and binding. Defined Terms. For purposes of this Appendix B, the following definitions shall apply: “FFO Per Share” shall mean the Company’s funds from operations, determined in accordance with the White Paper on funds from operations approved by the Board of Governors of the National Association of Real Estate Investment Trusts, adjusted as provided below, divided by the weighted average common shares of the Company outstanding for 2014, calculated on a diluted basis, including participating share-based awards (i.e. nonvested stock and time-based restricted stock units), the dilutive impact of stock options and contingently issuable shares and assuming the exchange of all common limited partnership units outstanding. Funds from operations shall be equitably and proportionately adjusted to include or exclude, as applicable, the following: • exclude expenses associated with variable accounting for equity-based awards to the extent that such expenses exceed the expense that would have been produced had such awards originally been granted as equity awards accounted for under FASB ASC Topic 718; • exclude unbudgeted compensation expenses; • exclude non-cash charges; • exclude acquisition-related expenses; • include revenue that would have been included in earnings but is not recognized due to tenant delays; • exclude the impact of mergers and similar corporate transactions; and • exclude the impact of similar extraordinary items not contemplated by the Committee on the Grant Date. B-2 “TSR Percentile” will be determined for each of 2014, 2015, and 2016, and, for each such year, means the percentile ranking of the Company’s TSR for such year among the TSRs for the Comparison Group members for such year. “TSR Percentile Ranking” means the average of the TSR Percentile determined for 2014, the TSR Percentile determined for 2015, and the TSR Percentile determined for 2016. “Comparison Group” means, with respect to a particular year, the Company and each other company included in the SNL US REIT Office Index on the Grant Date that remains included in such Index (or a successor index, in the event that the SNL US REIT Office Index ceases to exist) through the last day of that year. “TSR” means total shareholder return and shall be determined with respect to the Company and any other Comparison Group member for a particular year by dividing: (a) the sum of (i) the difference obtained by subtracting the applicable Beginning Price for such year from the applicable Ending Price for such year plus (ii) all dividends and other distributions during the applicable year by (b) the applicable Beginning Price for such year. Any non-cash distributions shall be valued at fair market value. For purposes of determining TSR, the value of dividends and other distributions shall be determined by treating them as reinvested in additional shares of stock at the closing market price on the date of distribution. “Beginning Price” means, with respect to the Company and any other Comparison Group member for a particular year, the average of the closing market prices of such company’s common stock on the principal exchange on which such stock is traded for the twenty (20) consecutive trading days ending with the last trading day immediately prior to such year. As to a stock which goes ex-dividend during such twenty (20)-trading day period, the closing market prices as to such stock for the portion of such period preceding the ex-dividend date shall be equitably and proportionately adjusted to exclude the amount of the related dividend. “Ending Price” means, with respect to the Company and any other Comparison Group member for a particular year, the average of the closing market prices of such company’s common stock on the principal exchange on which such stock is traded for the twenty (20) consecutive trading days ending with the last trading day of such year. As to a stock which goes ex-dividend during such twenty (20)-trading day period, the closing market prices as to such stock for the portion of such period preceding the ex-dividend date shall be equitably and proportionately adjusted to exclude the amount of the related dividend. With respect to the computation of TSR, Beginning Price, and Ending Price, there shall also be an equitable and proportionate adjustment to the extent (if any) necessary to preserve the intended incentives of the awards and mitigate the impact of any stock split, stock dividend or reverse stock split occurring during the applicable year. In determining the Company’s TSR Percentile for a particular year, in the event that the Company’s TSR for that year is equal to the TSR(s) of one or more other Comparison Group members for that same period, the Company’s TSR will be deemed to be greater than the TSR of such other Comparison Group member(s) for that year. B-3 Change of Control. In the event of a “change of control event” (within the meaning of Code Section 409A) with respect to the Company before December 31, 2016, the performance period applicable to the Performance-Vest RSUs shall end in connection with such change of control event and the foregoing provisions of this Appendix B shall be applied as modified by this paragraph. (For purposes of clarity, the Performance-Vest RSUs shall continue to be subject to the applicable time-based vesting requirement, and the severance protections afforded the Participant in the Grant Notice shall continue to apply.) If the change of control event occurs on or before March 31, 2014, the applicable percentage based on the Company’s FFO Per Share performance shall be deemed to be 100%. If the change of control event occurs after March 31, 2014, and before December 31, 2014, the FFO Per Share measurement/target levels set forth above in this Appendix B shall be pro-rated for a short performance period ending with the quarter prior to the quarter in which the change of control event occurs, and the applicable percentage based on the Company’s FFO Per Share performance shall be the greater of (1) the applicable percentage determined based on the Company’s actual FFO Per Share for that short performance period against such pro-rated measurement/target levels, and (2) 100%. In addition, the applicable percentage determined based on the Company’s TSR Percentile Ranking shall be based on any year of the three (3)-year period relevant for such determinations that is completed prior to the date of the change of control event, and the short year in which the change of control event occurs (with the applicable Ending Prices determined as of the date of the change of control event for purposes of determining TSRs and the TSR Percentile for such short year, and the Ending Price of the Company’s common stock for purposes of such determination shall be the last closing market price for a share of the Company’s common stock on the principal exchange on which such stock is traded immediately prior to such event (for clarity, a twenty (20)-day average will not be used to determine the Ending Price of the Company’s common stock in such circumstances)). B-4

Exhibit 10.2 [EXECUTION COPY] EQUITY RESIDENTIAL SHAREHOLDERS AGREEMENT This Shareholders Agreement (this “Agreement”) is entered into as of February 27, 2013, by and among Equity Residential, a Maryland real estate investment trust (“EQR”), Archstone Enterprise LP, a Delaware limited partnership (“Archstone”) and Lehman Brothers Holdings Inc., a Delaware corporation (“LBHI”). EQR, Archstone and LBHI are sometimes referred to herein as the “Parties” and each, a “Party.” WHEREAS, on November 26, 2012, Archstone, LBHI, ERP Operating Limited Partnership, an Illinois limited partnership (“ERPOP”), and AvalonBay Communities, Inc., a Maryland corporation (“AVB”), entered into an Asset Purchase Agreement (as it may be amended from time to time, the “Asset Purchase Agreement”) pursuant to which, among other things, (i) ERPOP and AVB or one or more Buyer Designees (as defined in the Asset Purchase Agreement) have agreed to acquire all of the assets and assume all of the liabilities of Archstone (other than as provided therein), (ii) ERPOP has agreed to deliver, or cause its Buyer Designees to deliver, to Archstone (or, if so directed by Archstone, to LBHI and/or a Lehman Designee (as defined in the Asset Purchase Agreement)) the ERPOP Equity Consideration (as defined in the Asset Purchase Agreement), and (iii) AVB has agreed to deliver, or cause its Buyer Designees to deliver, to Archstone (or, if so directed by Archstone, to LBHI and/or a Lehman Designee) the AVB Equity Consideration (as defined in the Asset Purchase Agreement); and WHEREAS, pursuant to and in accordance with Section 10.1.6(a) of the Asset Purchase Agreement, as a condition precedent to receiving the ERPOP Equity Consideration, each of the LBHI Parties have agreed to be bound by the terms and NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and hereby acknowledged, the Parties hereto, intending to be legally bound hereby, agree as follows: ARTICLE 1 DEFINITIONS 1.1 Definitions. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Section 1.1 or elsewhere in this Agreement. Capitalized terms used herein and not otherwise defined have the meanings assigned to them in the Asset Purchase Agreement. “Beneficial Ownership” and “Beneficially Own” shall have the meaning given to such term in Rule 13d-3 under the Exchange Act (disregarding the reference to “within 60 days” in Rule 13d-3(d)(1)(i)). “Extraordinary Transactions” means (a) any merger, consolidation, sale of all or substantially all of the assets, other business combination, liquidation, reclassification, recapitalization, restructuring or other similar action to which EQR is a constituent party, or (b) any issuance of securities to any Person or Group (within the meaning of Section 13(d)(3) of the Exchange Act) requiring approval of the common shareholders of EQR in accordance with any Law or the rules and regulations of the New York Stock Exchange as to such matters, “LBHI Party” means Archstone, LBHI and any Lehman Designee holding EQR Common Shares. “Permitted Transfers” shall mean, in each case, so long as (x) such Transfer is in accordance with applicable Law and (y) each LBHI Party is and at all times has been in compliance with Article 3 of this Agreement (other than any unintentional noncompliance that was cured as promptly as practicable upon the applicable LBHI Parties becoming aware of such noncompliance): (i) any Transfer to an Affiliate of the applicable LBHI Party or a liquidating trust established pursuant to the Plan, so long as such Person, in connection with such Transfer, executes a joinder to this Agreement in the form attached hereto as Exhibit A, pursuant to which such Person or Group (within the meaning of Section 13(d)(3) of the Exchange Act) agrees to become a Party to this Agreement and subject to the restrictions applicable to a LBHI Party and otherwise become a Party for all purposes of this Agreement; provided that no such Transfer(s) shall relieve the transferring LBHI Party or LBHI Parties from the obligations of such LBHI Party or LBHI Parties under this Agreement, and (ii) any Transfer solely to tender any of the ERPOP Equity Consideration into a tender or exchange offer commenced by EQR or a third party if the board of trustees of EQR has affirmatively publicly recommended to the EQR shareholders acceptance of such tender offer or exchange offer pursuant to Rule 14d-9 under the Exchange Act with respect to a third party tender or exchange offer or has determined not to oppose (as evidenced by its filings pursuant to such Rule 14d-9) the tender or exchange offer. “Plan” shall mean that certain Modified Third Amended Joint Chapter 11 Plan of Lehman Brothers Holdings Inc. and its Affiliated Debtors, dated December 6, 2011 and that certain Order Confirming Modified Third Amended Joint Chapter 11 Plan of Lehman Brothers Holdings Inc. and its Affiliated Debtors, dated December 6, 2011, [Docket No. 23023]. “Qualified Successor Transfer” shall mean any Transfer of common equity securities of EQR: (i) through an underwritten offering, (ii) to an underwriter that participates in a public offering (including a “bought deal” or a registered block trade) of common equity securities of EQR, but only to the extent necessary to facilitate such public offering, (iii) to Persons that are and will remain (for so long as such Persons own a sufficient number of common equity securities of EQR to require a filing on Schedule 13G under the Exchange Act) eligible to file a Schedule 13G with the Securities and Exchange Commission with respect to such common equity securities of EQR, (iv) pursuant to Rule 144 under the Securities Act, (v) to any bona fide financing source pursuant to a pledge by any LBHI Party of any of the ERPOP Equity Consideration as collateral securing indebtedness of such LBHI Party or any of its Affiliates, (vi) pursuant to a sale conducted by a bona fide financing source described in the preceding clause (v) in connection with a foreclosure with respect to any of the ERPOP Equity Consideration or a conveyance in lieu of foreclosure to any such financing source or its Affiliates, (vii) in a transaction described in clause (ii) of the definition of Permitted Transfers or (viii) during a “subsequent offering period” (as referenced in Rule 14d-11 of the Exchange Act) to any Person who has made a tender or exchange offer for all outstanding EQR Common Shares and who has purchased a number of EQR Common Shares tendered pursuant to such tender or exchange offer such that such Person, together with its Affiliates, Beneficially Owns in excess of 50% of the outstanding EQR Common Shares following the expiration of the initial offering period for such tender or exchange offer.   2 “Standstill Period” shall mean the period beginning on the date hereof and ending on the first date on which the LBHI Parties (and any Affiliate transferees) in the aggregate cease to Beneficially Own 5% or more of the outstanding common equity securities of EQR. “Transfer” means (i) any direct or indirect offer, sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer (by operation of law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer (by operation of law or otherwise), of any capital stock (or any security convertible or exchangeable into capital stock) or interest in any capital stock or (ii) during the Lock-Up Period only, in respect of any capital stock or interest in any capital stock, to enter into any swap or any other agreement, transaction or series of transactions that hedges or transfers, in of such capital stock or interest in capital stock, whether any such swap, agreement, transaction or series of transactions is to be settled by delivery of securities, in cash or otherwise (and with respect to the ERPOP Equity Consideration, this clause (ii) shall be deemed to include, without limitation, any hedging arrangement or transfer based on the FTSE NAREIT All Residential Capped Index, the FTSE NAREIT Equity Residential Index, the FTSE NAREIT Equity Apartments Index or any other index of which the capital stock of EQR represents at least 5% of the value at the time such hedging arrangement or transfer is entered into). ARTICLE 2 LOCK-UP AGREEMENT 2.1 Other than in the case of a Permitted Transfer, no LBHI Party shall Transfer any of the ERPOP Equity Consideration for the period beginning on the date hereof and ending on April 26, 2013 (such period, the “Lock-Up Period”). For the avoidance of doubt, nothing in this Section 2.1 shall prohibit any LBHI Party, from and after the expiration of the Lock-Up Period, from entering into any swap, derivative or any other agreement, transaction or series of transactions that hedges or transfers, in whole or in part, directly or indirectly, the economic consequence or ownership of the ERPOP Equity Consideration or interest in the ERPOP Equity Consideration, whether any such swap, derivative, agreement, transaction or series of transactions is to be settled by delivery of securities, in cash or otherwise, including, without limitation, any hedging arrangement or transfer based on any index referenced in the definition of “Transfer”. 2.2 Any Transfer or attempted Transfer of any of the ERPOP Equity Consideration in violation of this Article 2 shall, to the fullest extent permitted by Law, be null and void ab initio, and EQR shall not, and shall instruct its transfer agent and other third parties not to, record or recognize any such purported Transfer on the share register of EQR.   3 ARTICLE 3 STANDSTILL AGREEMENT 3.1 During the Standstill Period, the LBHI Parties shall not, directly or indirectly, without the prior written consent of EQR: 3.1.1 Acquire, agree to acquire or make any public proposal to acquire, directly or indirectly, Beneficial Ownership of common equity securities of EQR or any other securities of EQR entitled to vote generally in the election of trustees of EQR (collectively, “Voting Securities”), or securities of the Company that are convertible, exchangeable or exercisable into Voting Securities (other than (i) the receipt of common equity securities of EQR pursuant to the Asset Purchase Agreement, (ii) the acquisition of common equity securities of EQR or other Voting Securities as a result of any stock splits, stock dividends or other distributions or recapitalizations, reclassifications, reorganizations or similar transactions or offerings made available by EQR to holders of Voting Securities, including rights offerings, and (iii) from an Affiliate of any LBHI Party in a Permitted Transfer); 3.1.2 Deposit any Voting Securities in a voting trust or similar arrangement or subject any Voting Securities to any voting agreement, pooling arrangement or similar arrangement (other than (x) with another LBHI Party or any direct or indirect subsidiary of the LBHI Parties or (y) in connection with any transaction contemplated by the Asset Purchase Agreement or this Agreement), or grant any proxy with respect to any Voting Securities (other than (x) to EQR or a person specified by EQR, in a proxy card provided to shareholders of EQR by or on behalf of EQR, (y) to another LBHI Party or any direct or indirect subsidiary of the LBHI Parties, or (z) as otherwise necessary to permit any LBHI Party to vote Voting Securities as expressly permitted by Section 4.2); 3.1.3 Enter, agree to enter, propose or offer to enter into or facilitate any merger, business combination, tender offer, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving EQR or any of its subsidiaries (excluding voting as a shareholder with respect to such a transaction, to the extent permitted by Section 4.2, or tendering shares in a tender offer); 3.1.4 Make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or advise or knowingly influence any Person (other than a controlled Affiliate of any LBHI Party) with respect to the voting of, any voting securities of EQR or any of its subsidiaries; 3.1.5 Call, or seek to call, a meeting of the shareholders of EQR or initiate any shareholder proposal for action by the shareholders of EQR; 3.1.6 Form, join or in any way participate in a Group (within the meaning of Section 13(d)(3) of the Exchange Act) (other than with another LBHI Party or an Affiliate of any LBHI Party, or any direct or indirect subsidiary, of any LBHI Party), with respect to any voting securities of EQR;   4 3.1.7 Otherwise act, alone or in concert with others, to seek to control or influence the board of trustees of EQR, or the management or policies of EQR (including, without limitation, the submission of nominees for election to the board of trustees of EQR); 3.1.8 Publicly disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing; 3.1.9 Advise or knowingly assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Person or Group (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with the foregoing; or 3.1.10 Propose, seek or request permission to do any of the foregoing, request to amend or waive any provision of this Article 3 (including, without limitation, this clause 3.1.10), make or seek permission to make any public announcement with respect to any of the foregoing or take any action that such Person reasonably believes will require EQR to make a public announcement regarding the possibility of a business combination, merger or other type or transaction described above. ARTICLE 4 VOTING AGREEMENT 4.1 From and after the date hereof through and including the first anniversary of the date hereof (but in any event only so long as the Standstill Period is continuing), the LBHI Parties shall vote (including, through the execution of one or more written consents, if applicable) all common equity securities of EQR with respect to which the LBHI Parties have the power to vote (including the ERPOP Equity Consideration), in accordance with the recommendations of the board of trustees of EQR with respect to any action, proposal or other matter to be voted on by the respective common equity holders of EQR; provided that, so long as each of the LBHI Parties is and has at all times been in compliance with the provisions of Article 3 of this Agreement (other than any unintentional noncompliance that was cured as promptly as practicable upon the applicable LBHI Parties becoming aware of such noncompliance), the LBHI Parties may vote their common equity securities of EQR in their sole discretion with respect to Extraordinary Transactions if and to the extent submitted to a vote of EQR’s common equity holders. 4.2 Following the first anniversary of the date hereof and continuing until the termination of the Standstill Period, the LBHI Parties shall vote (including, through the execution of one or more written consents, if applicable) all common equity securities of EQR held by the LBHI Parties (including the ERPOP Equity Consideration): (i) in accordance with the recommendation of the board of trustees of EQR with respect to (A) any election of trustees, (B) compensation matters and matters relating to equity or other incentive plans (including the adoption of any new plan or the amendment of any existing plan, including to increase the amount of equity or other compensation issuable thereunder), and (C) any amendment to EQR’s declaration of trust to increase the authorized capital stock, (ii) on all shareholder proposals, in one of the following two manners, at the election of the LBHI Parties (x) proportionally in accordance with the votes of other shareholders of EQR or (y) in accordance with the recommendation of the board of trustees of EQR, and (iii) on all other matters, in the sole and absolute discretion of the LBHI Parties.   5 ARTICLE 5 TRANSFERS 5.1 Until the one-year anniversary of the last day of the Standstill Period, prior to and as a condition to any Transfer (other than solely in the case of a Qualified Successor Transfer) by a LBHI Party of EQR Common Shares (including the ERPOP Equity Consideration) to any Person or Group (within the meaning of Section 13(d)(3) of the Exchange Act) that would result in such Person or Group acquiring more than 5% of EQR’s outstanding common equity securities from the LBHI Parties or their Affiliates, such Person or Group shall be required to execute a joinder to this Agreement, in the form attached hereto as Exhibit A, pursuant to which such Person or Group agrees to become a Party to this Agreement and subject to the restrictions applicable to a LBHI Party and otherwise become a Party for all purposes of this Agreement; provided that no such Transfer(s) shall relieve the transferring LBHI Party or LBHI Parties from their obligations under this Agreement. ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF EQR 6.1 EQR hereby represents and warrants to the other Parties as follows: 6.1.1 EQR has been duly formed, is validly existing, and, where such concept is applicable, is in good standing under the laws of its jurisdiction of organization. EQR has all requisite power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement. 6.1.2 The execution and delivery by EQR of this Agreement and the performance by EQR of its obligations under this Agreement do not and will not conflict with or violate any provision of, or require the consent or approval of any Person (except for any such consents or approvals which have been obtained) under, (i) applicable Law, or (ii) the organizational documents of EQR. 6.1.3 The execution and delivery by EQR of this Agreement and the performance by EQR of its obligations under this Agreement have been duly authorized by all necessary corporate or other analogous action on the part of EQR. This Agreement has been duly executed and delivered by EQR and, assuming the due authorization, execution and delivery by the other Parties hereto, constitutes a legal, valid and binding obligation of EQR, enforceable against EQR in accordance with its terms, subject to bankruptcy, insolvency and other Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.   6 ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF LBHI AND ARCHSTONE 7.1 Each of LBHI and Archstone hereby severally, and not jointly and severally, represents and warrants to the other Parties as follows: 7.1.1 Each LBHI Party has been duly formed, is validly existing, and, where such concept is applicable, is in good standing under the laws of its jurisdiction of organization. LBHI and Archstone have all requisite power and authority to execute and deliver this Agreement and each LBHI Party has all requisite power and authority to perform its obligations under this Agreement. 7.1.2 The execution and delivery by LBHI and Archstone of this Agreement and the performance by each of the LBHI Parties of their obligations under this Agreement do not and will not conflict with or violate any provision of, or require the consent or approval of any Person (except for any such consents or approvals which have been obtained) under, (i) applicable Law, or (ii) the organizational documents of any LBHI Party. 7.1.3 The execution and delivery by LBHI and Archstone of this Agreement and the performance by LBHI and Archstone of their obligations under this Agreement have been duly authorized by all necessary corporate or other analogous action on the part of LBHI and Archstone. This Agreement has been duly executed and delivered by LBHI and Archstone and, assuming the due authorization, execution and delivery by the other parties hereto, constitutes a legal, valid and binding obligation of LBHI and Archstone, enforceable against LBHI and Archstone in accordance with its terms, subject to bankruptcy, insolvency and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity. 7.1.4 Each of LBHI and Archstone acknowledges that the securities included in the ERPOP Equity Consideration have not been registered under the Securities Act or any state securities laws. ARTICLE 8 MISCELLANEOUS PROVISIONS 8.1 Notices. All notices, consents and other communications hereunder shall be in writing (including telecopy or similar writing) and shall be deemed to have been duly given (a) when delivered by hand or by Federal Express or a similar overnight courier to (or if that day is not a Business Day, or if delivered after 5:00 p.m., New York, New York time on a Business Day, on the first following day that is a Business Day), (b) five (5) days after being deposited in any United States Post Office enclosed in a postage prepaid, registered or certified envelope addressed to, or (c) when successfully transmitted by facsimile to, the Party for whom intended, at the address or facsimile number for such Party set forth in Section 16.1 of the Asset Purchase Agreement. 8.2 LBHI Parties. LBHI shall cause each LBHI Party to perform and observe all obligations applicable to such LBHI Party hereunder. 8.3 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties in respect of the provisions contained herein and supersedes all prior discussions, negotiations, agreements, arrangements and understandings, whether oral or written, relating to the subject matter hereof and thereof. There are no warranties, representations or other agreements between the Parties in connection with the subject matter of this Agreement, except as specifically set forth in this Agreement.   7 8.4 Amendments and Waivers. 8.4.1 Any provision of this Agreement may be amended or modified only by a written instrument signed by all of the Parties hereto. 8.4.2 No waiver hereunder shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of the waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Neither the waiver by any of the Parties of a breach of or a default under any of the provisions of this Agreement, nor the failure by any of the Parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. Except as otherwise provided herein, no action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, shall be deemed to constitute a waiver by the Party taking such action of compliance with any representations, warranties, covenants or agreements contained in this Agreement. 8.5 Governing Law. This Agreement shall be construed, performed and enforced in accordance with the laws of the State of Maryland (without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the laws of another jurisdiction). 8.6 Remedies; Specific Performance. The Parties hereto agree that monetary damages would not be an adequate remedy in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms. It is expressly agreed that the Parties hereto shall be entitled to equitable relief, including injunctive relief and specific performance of the terms hereof, this being in addition to any other remedies to which they are entitled at law or in equity. 8.7 WAIVER OF TRIAL BY JURY. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY OR CLAIM WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 8.7 AND EXECUTED BY EACH OF THE PARTIES HERETO). The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.   8 EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.7. 8.8 Binding Effect. This Agreement will be binding upon, inure solely to the benefit of and be enforceable by the Parties and their respective permitted successors and assigns. 8.9 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, such term, provision, covenant or restriction shall, as to such jurisdiction, be ineffective to the extent of provisions of this Agreement, and the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 8.10 Counterparts. This Agreement may be executed and delivered in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. It is the express intent of the Parties to be bound by the exchange of signatures on this Agreement via facsimile or electronic mail via the portable document format (PDF). A facsimile or other copy of a signature shall be deemed an original. This Agreement shall become effective when each Party hereto shall have received a counterpart hereof signed by all of the other Parties hereto. Until and unless each Party has received a counterpart hereof signed by the other Parties hereto, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). 8.11 Third Parties. Except as otherwise expressly provided herein, no provision of this Agreement is intended or shall confer on any Person, other than the Parties (and their successors and permitted assigns), any rights under this Agreement and no other Person shall be entitled to rely thereon. 8.12 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, delegated or otherwise transferred by any Party (whether by operation of law or otherwise) without the prior written consent of the other Parties. Notwithstanding the foregoing, (i) EQR shall have the right to assign all or certain provisions of this Agreement, or any interest herein, and may delegate any duty or obligation hereunder, without the consent of the other Parties, to any Affiliate of EQR, and (ii) the LBHI Parties shall have the right to assign certain provisions of this Agreement, without the consent of the other Parties, only as specifically permitted by Articles 2 and 5 of this Agreement; provided that, in the case of each of clauses (i) and (ii), no such assignment or delegation shall relieve such Party of any of its obligations hereunder. Any attempted assignment, delegation or transfer in violation of this Section 8.12 shall be null and void.   9 IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date set forth above.   EQUITY RESIDENTIAL By:   /s/ Scott J. Fenster   Name: Scott J. Fenster   Title: Senior Vice President   ARCHSTONE ENTERPRISE LP By:   /s/ Jeffrey Fitts   Name: Jeffrey Fitts   Title: Authorized Signatory   LEHMAN BROTHERS HOLDINGS INC. By:   [SIGNATURE PAGE TO EQUITY RESIDENTIAL SHAREHOLDERS AGREEMENT] EXHIBIT A FORM OF JOINDER AGREEMENT The undersigned is acquiring, simultaneously with the execution of this Joinder Agreement, [•] shares of [•] (the “Securities”), of Equity Residential, a Maryland real estate investment trust (“EQR”). WHEREAS, as a condition to the acquisition of the Securities, the undersigned has agreed to join in a certain Shareholders Agreement (as it may be amended from time to time the “Shareholders Agreement”), dated as of February 27, 2013 among Equity Residential, a Maryland real estate investment trust (“EQR”), Archstone Enterprise LP, a Delaware limited partnership (“Archstone”), Lehman Brothers Holdings, Inc., (“LBHI”) and the other parties signatory thereto; and WHEREAS, the undersigned understands that the execution of this Joinder Agreement is a condition precedent to the acquisition of the Securities. NOW, THEREFORE, as an inducement to EQR and to the holder from whom or which the undersigned is acquiring the Securities to consummate the transfer of the Securities to the undersigned, the undersigned hereby agrees to join in the Shareholders Agreement and agrees to be bound by all of the terms, restrictions, obligations and agreements thereof applicable to an “LBHI Party” thereunder, and the undersigned hereby represents and warrants that: The undersigned has been duly formed, is validly existing and, where such organization. The undersigned has all requisite power and authority to execute and deliver this Joinder Agreement and the Shareholders Agreement and to perform its obligations hereunder and thereunder. The execution and delivery by the undersigned of this Joinder Agreement and the Shareholders Agreement and the performance by the undersigned of its obligations hereunder and thereunder do not and will not conflict with or violate any provision of, or require the consent or approval of any Person (except for any such consents or approvals which have been obtained) under, (i) applicable Law (as such term is used in the Shareholders Agreement), or (ii) the organizational documents of the undersigned. performance by the undersigned of its obligations hereunder and under the Shareholders Agreement have been duly authorized by all necessary corporate or other analogous action on the part of the undersigned. This Agreement has been duly executed and delivered by the undersigned, and assuming the due authorization, execution and delivery by the other parties hereto, each of this Joinder Agreement and the Shareholders Agreement constitutes a legal, valid and binding obligation of the undersigned, enforceable against the undersigned in accordance with its terms, subject only to bankruptcy, insolvency and other laws of general applicability relating to or affecting creditors’ rights and to IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the [•] day of [•], 20[•].   [•] a [•] By:       Name:   Title:   Accepted by: Equity Residential, a Maryland real estate investment trust By:       Name:   Title:

Explanations of vote in writing. - (PT) We regard the sustainability of fishery resources as essential for the continuation of fishing activity and the viability of the fisheries sector, but we do not accept a fleet management policy - as adopted in the EU - or a reduction in the fleet, the main consequences of which will be a significant reduction in the means of production and a drastic loss of jobs. To achieve the objective of a sustainable balance between fishing capacity and fishing opportunities, account must be taken of the social and economic situation in the fisheries sector by applying mechanisms for subsidising or compensating fishermen affected by the economic consequences of an environmentally friendly fishing activity and by measures to reduce fishing, especially in less-favoured regions that are dependent upon the fisheries sector. Similarly, the fishing effort should be matched to existing resources and to the protection of the marine environment - which would at one and the same time promote small-scale coastal fishing and non-industrial fishing and safeguard fishing communities; it would be particularly helpful in that context to increase Member States' exclusive fishing zones from the current 12 nautical miles to 24 nautical miles and for outermost regions from 100 nautical miles to 200 nautical miles. I voted in favour of the report by my colleague Mr Casaca because it clearly underlines the perverse effects of the current system, which sometimes causes decisions to be taken that are disconnected from local realities. Take, for example, the case of thonaille fishing in the Mediterranean. Those who do it have made efforts to develop their fishing methods, but legislation adopted recently is putting disproportionate restrictions on them that are in danger of causing their disappearance. They are in fact facing unfair competition from their colleagues in the Eastern Atlantic, both Spanish and French. In accordance with the report's proposals, an approach using geographical fishing areas and taking account of the specific features of the techniques employed would have made it possible to ensure a fairer distribution of fishing effort capable of guaranteeing a sustainable balance between fishing capacity and fishing opportunities. in writing. - I support the Elles report on the draft amending budget No 5/2007. In doing so, I would like to point out a particular problem for my own country that might mitigate against support for additional spending. The problem Britain has is that Margaret Thatcher with the 1984 Fontainebleau Agreement left future British Governments with a poison pill. Fontainebleau gives Britain back a rebate of two-thirds the difference between our annual contributions and annual receipts from the EU. Thus any new expenditure programmes cost Britain twice; first we pay our 50% and then lose two thirds of the EU contribution, diminishing uniquely in our case the EU contribution from 50% to less than 17%. Allowing for the fact Britain's contributions are just below 15% of the total budget, any new project for which Britain receives less than a third of the benefits leaves Britain out of pocket. in writing. - (PT) The report states that approximately 110 billion tonnes/km of dangerous goods - dangerous for the population and the environment - are transported annually within the EU, accounting for almost 8% of total transportation of goods. Of those, 58% are transported by rail, 25% by air and 17% by inland waterways. The international transportation of dangerous goods is regulated by international agreements. In that context, we believe that the useful and necessary cooperation at EU level must safeguard the full sovereignty of the Member States as regards the transportation of (dangerous) goods within their territory, for example by means of the right to regulate, to issue individual authorisations and forbid the transportation of dangerous goods, notably for reasons of national security or environmental protection. This is a matter of principle that is all the more important in the context of the unbridled liberalisation of transportation promoted by the EU. The Commission proposal on the simplification and unification of European legislation on the transport of dangerous goods should be endorsed in its entirety, including in the interests of better regulation. As recently as 31 August 2007 I visited the traffic management headquarters for seven road tunnels, among them the longest tunnel in Germany, and became aware of the need for harmonisation, particularly of the provisions on the transport of dangerous goods in tunnels. The transport not only of goods per se, but also of dangerous goods, is growing rapidly - and this is happening worldwide so that even the increase can no longer be absorbed by a single mode of transport. It makes sense, therefore, to adopt the relevant rules for transport not only by road and rail, but also by inland waterway. This improves the chances of applying the co-modal approach to the problem of our transport needs. It is particularly worthy of mention in terms of the understanding of our fellow citizens that the present legal act takes account not only of the specific recommendations of the United Nations but also of Member States' subsidiarity requirements. The fact that the directive summarises four 'old' directives and saves 2 000 pages of legislative text makes it an example of bureaucracy reduction in action. Member States will retain the right to regulate or even prohibit the transport of certain dangerous goods within their territory, for example, for reasons of national security or of environmental protection. In the final analysis, the public can expect this directive to make a contribution to improving both transport safety and environmental safety. For once the Commission proposal aimed at harmonising the rules for the transport of dangerous goods is a step in the right direction. Indeed the proposed text aims to simplify and unify existing Community legislation. Currently no less than four directives and many Commission decisions govern the transport of dangerous goods by land (rail, road) and inland waterways. This disparate collection means that the rules are too complex, difficult to transpose into national legislation and often obsolete. This is a particularly important subject because the volume of inland transport in the EU is constantly increasing, as is the volume of dangerous goods. Nearly 110 billion tonnes/km/year of these goods are transported annually in the EU, amounting to 8% of all goods transported. Because of its strategic position as the crossroads of Europe, France's road, rail and waterway networks are often congested and therefore particularly subject to transport accidents. It is high time all the peripheral, excessive EU legislation on this matter was eliminated to enable the various operators, but also the national authorities, to guarantee and fully strengthen the safety of this type of transport. Given the continuous rise in freight transport, the catastrophic lorry fire in the Gotthard Tunnel and similar occurrences will certainly not be the last horror stories about lorry accidents. This is particularly the case since lorries play a disproportionately frequent role in accidents on motorways, and since rest periods are often not observed owing to ever decreasing margins and ever increasing competitive pressure. Poorly upgraded roads and the formation of tailbacks also increase the potential danger. If a vehicle transporting dangerous goods is involved in such an accident, the consequences are, of course, all the more serious. In addition, time and again, radioactive, corrosive or explosive freight is transported illegally, putting the emergency services in mortal danger when accidents occur. It is only right and proper that the safety requirements be updated, which is why I, too, voted in favour of the report, although checks should also be reinforced accordingly. in writing. - (PT) One of the EU's basic obligations and responsibilities is to create safe living conditions for European citizens. The volume of inland goods transport within the EU is constantly expanding and, in line with that increase, the volume of dangerous goods transported has also been rising. We therefore need to ensure that the legislation applicable to the transportation of dangerous goods is simplified and clarified. The intention to include under a single directive the transportation of dangerous goods by rail, road and inland waterways might encourage co-modality and, by the application of established rules, improve safety and speed based on the adoption of new criteria on fast delivery of goods and provision of the relevant services. A prerequisite for that is, therefore, ever greater safety in transportation throughout the territory of the EU, including the transportation of dangerous goods; I believe that will be possible with the implementation of the measures contained in this directive. I am voting in favour of Bogusław Liberadzki's report on the inland transport of dangerous goods. Professor Liberadzki is a leading specialist in the field of transport. The report he presents is professionally written and gives an in-depth analysis of the problem raised. One of the European Union's priorities is undoubtedly to ensure that Europeans enjoy safe living conditions. This also includes the safety of transport throughout the Union, and particularly the transport of dangerous goods. The increased circulation of goods and services has brought about an increase in road, rail and river transport. That is why I am supporting the initiative to bring these forms of transport together under a single directive. I feel that at European level we should strive to establish legislation with the greatest added value for EU citizens. Encapsulating the regulations in a single EU document will enhance their transparency and accessibility and also the efficacy of their application. (DE) Mr President, I voted in favour of the Jeggle reports, because I hope they will facilitate the survival of our farmers. After all, there was a time when farmers could make a very good living from their produce. Nowadays, food prices are rising continuously but, whilst large enterprises benefit from this and harvest handsome profit margins, simple farmers are pushed increasingly into the role of supplicants. Often, smallholders need a supplementary source of income to survive, and the love of nature is the overriding and only reason many take on this dual burden. Increasing numbers are throwing in the towel, however, which has already led to a dependence on imports in the field of fruit, vegetables and feeding-stuff production. Since EU accession, over 50% of Austrian farmers have given up their businesses; that is, ceased milk production. Thus we are rapidly approaching the point at which our self-sufficiency in fresh milk and fresh-milk products is under threat. (CS) Mr President, ladies and gentlemen, during today's vote on the three milk reports I expressed my support for the Commission proposals, as I believe they represent steps in the right direction. The over-regulation of the market in milk and milk products for drinking milk in the EU is both unnecessary and senseless and both consumers and producers suffer as a result. It is therefore only right that the existing rules be liberalised. It is commendable that besides the three existing categories of drinking milk, additional categories of drinking milk with other fat content be allowed. As a result, both consumers and producers will be able to exercise a greater choice. Such a development can only be welcomed. In fact, the Commission should vigorously pursue the liberalisation of the drinking milk market, because the existing system of milk quotas is both antiquated and functionless. There is no reason to continue imposing fines on producers for producing large quantities of milk. Now, at a time when the demand for milk and drinking milk products is increasing throughout the world, milk quotas are clearly proving to be an obstacle to the development of the milk industry throughout the EU. in writing. - The current strength in the milk sector is creating great optimism amongst dairy farmers in Europe. Growing appetites for dairy in Asia, shrinking European production and increased use of land production in the US for biofuels is driving the price of dairy to a record high. As an MEP representing rural Ireland, I am happy that dairy farmers are getting a deserved break, although production costs continue to rise making it harder for smaller dairy farmers in particular to survive. A change in market management mechanisms brings instability. With the milk quotas scheduled for removal by 2015, provisions need to be made to absorb volatility in the market. The reaction of the producers is unknown. An increase in output of milk will lead to a drop in prices. Safeguard mechanisms allowable under the WTO will be crucial for stability. At present, export refunds are zero rated due to the strength in global dairy markets. We should ensure that they are retained as mechanisms that could potentially be introduced at a later date. Change is inevitable in the dairy sector, but there needs to be a well managed transition to provide the farmers of Europe with a stable and bright future. in writing. - (PT) We agree with the line taken in the report that it is important to give an essentially qualitative boost to the school milk programme. We regret, however, that in its present form with the management philosophy adopted and with the resources currently allocated, this programme has in many cases become an encouragement to stop drinking milk in view of the poor quality and unsatisfactory nature of the products offered in relation to the tastes of pupils in lower secondary school. We therefore agree that the range of products for inclusion in this programme should be expanded both as regards diversity and in terms of nutritional considerations and dietary rationalisation. However, we must remember that we need to solve, as a matter of urgency, simple issues such as the lack of refrigeration networks, because that prevents schools and many Portuguese students from having access to anything other than UHT milk. The nutritional value of milk is well known, and we know that we need to encourage people to drink it. However, in order to make that possible, aid is required to help to produce quality milk and it is the innumerable small herds that hold the key; it is in the main family farms which, by means of non-intensive dairy farming, keep the rural communities alive and the countryside populated. in writing. - (SV) The reports on milk products from the Agriculture Committee are a mixed bag. The June List supports the Commission on the point that it must be permitted to produce and sell drinking milk that is not classified in any of the three categories that apply at present. Such liberalisation is good and makes things easier for Sweden, which since 1995 has had problems adapting Swedish traditions to the EU's rigid rules on milk products. The other two milk reports build on the EU's Common Agricultural Policy and are rejected by the June List. Milk production should be a matter for the free market, subject to normal food controls on public health grounds. The Agriculture Committee's amendments in the report on the common organisation of the market in milk and milk products are simply absurd. They propose that budgetary savings that are made are redistributed in the milk sector and that a milk fund restructuring programme is set up, that support is given to those within the milk sector who are affected by increasing market liberalisation, that marketing support measures and milk promotional activities are stepped up, that support is given for milk production in mountain regions and that the scheme to distribute milk to schools is reinforced. We are strongly opposed to these proposals. The June List would observe that it is just as well that the European Parliament does not have codecision powers in the EU's agricultural policy, because the Union would then fall into a trap of protectionism and heavy subsidies for all the different groups in the agriculture sector. The Danish members of the Socialist Group in the European Parliament - Mr Rasmussen, Mrs Thomsen, Mrs Schaldemose, Mr Jørgensen and Mr Christensen - have voted against not only the Commission's proposals but also the amendments proposed by Parliament. In the delegation's opinion, reform of the scheme to distribute milk to schools is necessary, but the proposal does not go far enough. The delegation believes that support for high-fat milk should be abolished completely, whilst healthy milk should receive the greatest support. However, the delegation wishes to emphasise its support for reform of the EU's agricultural support in the direction of greater market orientation, and EU agricultural policy should be linked to environmental policy and public health initiatives, among other things. in writing. - In order to ensure the integrity of this Parliament, all Members who have a financial interest in the dairy sector should declare an interest in these votes. (DE) Mr President, I voted in favour of this resolution, as I believe there comes a time when we need to review this measure and assess whether it is really appropriate and effective. If it is not effective, we will abolish it; if it is only partially effective and appropriate, it will have to be modified accordingly. At all events, however, we should be working towards standardising implementation - that is, ensuring uniformity of checks - so as to put an end once and for all the vexation we are currently experiencing at airports. (MT) I would like to explain that there should not be any compromises as far as security is concerned. We have to appreciate that when it comes to the restrictions on taking liquids on an aeroplane, it is true that it is an inconvenience, it is true that it is annoying to have to throw away what you are carrying, but on the other hand, security is paramount; security is the best way. If the British secret services are telling us that there is still a threat, then there is still a threat. We cannot make any compromises, and that is why we have to be very careful when adopting resolutions and approving motions relating to this matter so that we do not appear in any way weak or feeble in our attitude. (SK) During my regular business trips I witness annoying problems faced by passengers carrying liquids in their hand luggage at European airports. Passengers must part with their cosmetics. Fortunately they can manage to drink a half-litre bottle of mineral water but aftershave or shampoo exceeding the permitted limit will meet its end in a ready container. Passengers see these strict airport controls as a violation of their rights. They do not know why they have to do this and are angry with the Union, with its bureaucratic rules. The purpose of their flight is different and therefore they do not understand why they have to part with basic hygiene products. Nor do the employees have the time or the inclination needed to justify the strict controls in place as an anti-terrorist mechanism. I voted in favour of the motion for a resolution, which proposes ending the controversial measures affecting air passengers and emphasises the need for research studies to find efficient tools for the detection of explosives in liquids. I believe that the European Commission will thoroughly review the ban on taking liquids on board aircraft and - if no further facts are uncovered - it will abolish this controversial measure. in writing. - Although UKIP makes the point on principle to support any repeal of EU Legislation, this is a national security issue and as such the party could not support a measure that could place air passengers and crew at risk. As HMG has stated, terrorism remains a serious and continuing threat. in writing. - Although UKIP makes the point on principle to support any repeal of EU legislation, this is a national security issue and as such the party could not support a measure that could place air passengers and crew at risk. As HMG has expressed, terrorism remains a serious and continuing threat. HMG's view: HMG welcomes the TRAN Committee resolution's acknowledgement that Europe needs a high level of security in aviation. Terrorism remains a serious and continuing threat. It is currently impractical to test more than a small proportion of the liquids that passengers wish to carry. So the interim controls, pending work on a more convenient technology-based solution, represent the only present way of properly ensuring passenger safety. in writing. - I voted for this resolution particularly because of the demand contained within it for a review of the effectiveness and fairness of Regulation (EC) No 1546/2006 (introduction of liquids onto aircraft). What I find most absurd is that I can fly into Europe with duty-free liquids - alcohol, perfume or food bought outside of the EU - but should I transit to another plane within the EU, it will be confiscated by the authorities. Does it not occur to the Commission that terrorists probably are more aware of the Regulation than your average passenger and will therefore act accordingly? It equally implies that security at all extra-EU airports are inferior to the worst EU airport. As a regular air traveller, I find that difficult, if not impossible, to believe. in writing. - (PT) As regards the Regulation on restrictions on the introduction of liquids onto aircraft, I believe that the adoption of the amendment - that was also tabled by our Parliamentary group - that 'invites' the European Commission to repeal that Regulation, is a positive step, since there has never been any evidence that it is effective in terms of security, nor have any conclusive facts been produced, as had been promised, by means of an exhaustive public report. Moreover, it was emphasised that if the Commission intends to present a regulation of this kind in the future, it must first produce a report proving that such a measure will be effective. I would point out that, although the current regulation is being applied, the Commission has not even published or made available to the public a specific statement of the prohibitions and restrictions to which they might be subjected, a list of exceptions to those rules or the reasons for the measure. Nor did the Commission ensure that air passengers were fully and correctly informed of their rights, especially as regards cases of abuse of power in the application of the security rules. in writing. - I support moves to review the current restrictions on the quantity of liquids passengers are allowed to carry on board aircraft in the EU. I voted in favour of the resolution which asks the European Commission to review the restrictions and ensure they are proportionate to any risk. We need restrictions that are realistic and in proportion to any potential threat. We all take the need to guard against terrorist threats very seriously, but our response has to be proportionate and justified. There is cross-party concern that the current restrictions imposed by the European Commission are disproportionately costly and disruptive. I would like to see the situation reviewed, and if these restrictions are to continue, then the Commission needs to clearly justify precisely why they are needed. in writing. - British Conservatives fully support a review of the Regulation governing what liquids passengers can and cannot take on board aeroplanes. The way in which this Regulation has been applied across the EU has varied, giving rise to inconsistencies and manifest unfairness, and any review must address this aspect as a matter of urgency. However, we do not consider it would be right to call for a repeal of the regulations at this stage, since as a matter of principle the outcome of an expert review should not be pre-judged and protection of the public is paramount. in writing. - UKIP supports the repeal of all EU legislation. However, this is a particular measure which would put passengers and crew at risk and which we cannot therefore support. in writing. - I voted against this Resolution which seeks to repeal the existing regulation, introduced last year, that restricts liquids on board aircraft. I am worried that British Liberal and Green members of the European Parliament have now opened up the possibility of repealing this law, even though the strong advice from both the Security Services and the Department of Transport is to keep this legislation in place. While I agree with reviewing the legislation on an ongoing basis, it is both premature and dangerous to repeal the legislation at present. in writing. - (PT) I think that the threat to the security of air transport is a real one and that the risks involved are enormous. I therefore believe that the inconvenience to passengers is proportional to what we are protecting and that the issue here is in no way a violation of rights, freedoms or guarantees, but simply a technical measure that has proved effective. I therefore consider that the European Parliament is being too hasty and over-stepping its brief in asking that the Regulation on the introduction of liquids onto aircraft should not be implemented unless new proof is produced in support of such implementation. The precautionary principle would dictate that it is better to suffer some slight inconvenience than a disaster. The security principle dictates that we should not make things easier unless we are sure of the risks involved. I therefore voted against the motion for a resolution laying down measures for the implementation of common basic standards on aviation security (introduction of liquids onto aircraft). At a time when a large number of holidaymakers are heading back to work, it is worth thinking about some of the safety rules on board aircraft and at airports. As a reminder, more than 16 million passengers transit through Brussels National airport each year, and since last November they have been subject to a ban on carrying liquids in their hand luggage. There is no question as far as I am concerned of compromising security. However, a large number of passengers have complained about the way this ban is enforced at different European airports: at some, they can carry products purchased at the airport in their hand luggage, and at others they cannot. What is more, it is difficult to impose this kind of measure on passengers if its added value in terms of security has not been proven beyond doubt, and this does not seem to be the case. So it seems reasonable to me to ask the Commission to demonstrate the validity of this measure, and if it is proven, to provide for uniform application, in total transparency. That way, passengers will finally know which way to turn. in writing. - I voted against this report because, whilst it makes real sense to review the impact of this measure, it is important not to repeal it. The passengers that travel through European airports like Gatwick in my region are often confused and upset with the application of this rule. In particular the way in which passengers are expected to turn over their 'duty-free' liquids purchased at an airport to the authorities checking hand luggage. The problem seems to be with passengers in transit who buy in the 'transit' airport and then attempt to check through security for their further flight. I opposed a full repeal because there are still legitimate security concerns which must be our first priority. There are also alternatives to a simple repeal which might produce better convenience for passengers and maintain security. in writing. - The current, mindless airport and aviation security measures are an unfortunate and constant reminder of terrorism. They do not instil public confidence. There have to be security checks - both on the public side and airside. But these should make sense and be flexible. Above all, they should be targeted more effectively. This means 'profiling', a key measure that is avoided for fear of a 'discrimination' accusation. It is curious that the European Commission thinks it has to give the green light to new security measures for Europe's airports. Governments of EU countries should co-ordinate their response - but this must not be an excuse to extend the competence of the Commission into new areas. Certainly the British Government must resist any further attempt to remove our national veto on justice and policing matters. The International Civil Aviation Organisation, with its global reach, is the appropriate body to ensure that airports around the world meet security needs. We abstained on the resolution. I voted in favour of the report by my colleague Mrs Ayala Sender in response to the Commission communication on freight transport logistics in Europe and sustainable mobility. We are going to be looking forward to the Commission's report on an Action Plan for freight transport logistics in Autumn 2007. However, on the subject of logistics, it is becoming a matter of urgency to launch the debate on the ambitious European territorial development policy, based particularly on financing infrastructure (motorways, railways, airports, ports, new technologies, satellites, etc.) using the leverage of debt with, for example, greater use of the European Investment Bank (EIB), which could release nearly EUR 1 000 billion of investment potential over 10 years, public/private partnerships (PPPs), etc. An ambitious European territorial development policy based on massive investment will be one of the conditions to enable logistics operators to do their job properly at the best cost while respecting the environment. in writing. (SV) - There is good reason to work together to create a smoothly functioning transport system between Member States with a view to promoting the internal market. We do, however, question many individual points in this report. We do not share the view that the common transport policy is under-financed and that the EU should invest further resources in this area. We question the need for common training standards for the personnel involved in transport and logistics as we have every confidence in each Member State's ability to manage this area satisfactorily. Lastly, we believe that the Member States must decide independently whether or not 60 t goods vehicles may be permitted. On account of these criticisms we have chosen to vote against the report. in writing. - (PT) Although many other considerations deserve a mention with regard to this report, we should like to point out, in this explanation of vote, that we cannot understand why our proposed amendment, aimed at including a mention of the outermost regions - such as the Azores and Madeira - within the definition of the priorities for transport logistics in the various EU countries, was rejected. Our amendments, which were rejected, placed the accent on: the strategic importance of public services and their contribution to the public sector in promoting economic, social and territorial cohesion, and criticism of the policies that challenge the role of the State as a provider of public services; the incentive effect of public investments co-financed by the Structural Funds under the cohesion policy, which attract private investment and the possibility of using Community funding to finance private investment where there is no public investment strategy. The rejection is all the more significant since the report notes that logistics is primarily a business activity, considering, however, that public authorities can play a role and act as facilitators and asking for the dissemination of best practice in financing logistics, for example, various initiatives using private-public co- financing. A word to the wise... I voted in favour of this directive because it raises public awareness of the transport sector, in particular. After all, transport logistics is a crucial factor in the development of European economic growth, competitiveness and quality of life, and also reduces environmental impact. However, in my opinion, the statements on the authorisation of megaliners are out of place in this directive, as they are short-sighted and do not go far enough. I voted in favour of the directive only in the hope that the Commission will take up this matter in the immediate future and regulate the area separately, at which point safety, environmental, transport and logistic aspects alike will have to be taken into account. State-of-the-art knowledge will have to be utilised, as will politicians' scope for laying down a strict framework for the use of such vehicles. This could include rules on the use of Driver Assistance Systems such as brake assistants, lane departure warning systems, adaptive cruise control systems and camera monitors, or rules on steered axles and the distribution of driving power over several wheels. Finally, we must not automatically associate the term 'megaliner' with a maximum authorised mass of 60 tonnes. It should be taken into account that megaliners with a maximum authorised mass of 44 tonnes actually reduce road congestion and bring enormous benefits to the economy, transport and the environment without harming the railways, which cannot even absorb the growth in demand for transport services. While I am delighted about the adoption of the own-initiative report by Mrs Ayala Sender on logistics, which underlines the importance of intermodality for cleaner and more sustainable transport, I can only lament the adoption of paragraph 21, against which I had already voted in the Committee on Transport and Tourism. I voted against this paragraph because 60 t goods vehicles, to which this paragraph has just opened the door, are dangerous for the environment and for the users of our roads, which were not designed to carry these loads. The road lobby's arguments are fallacious: as the load capacities of current HGVs are already underused, the reduction in pollutant gas emissions that people are trying to lure us with on the basis of 'fewer vehicles for more transported goods' is a trick. As for the impact of these juggernauts on our infrastructure, it will eventually land on the shoulders of taxpayers by causing an explosion in road resurfacing budgets. Finally, regarding road safety, apart from the risks posed by damage to infrastructure, the very size of these road-using monsters represents a danger for all other users. in writing. - Although I will be supporting the Ayala Sender report because it contains a number of good and constructive suggestions as regards the technical subject of freight logistics, I do have some concerns. One thing that concerns me is that the possibility of introducing 60-tonne mega lorries throughout Europe is a concept that I believe to be misguided and inappropriate when rail freight is at a low ebb, and when national infrastructures cannot sustain 60-tonne lorries it seems crazy to move away from present weight limits. I appreciate that some countries already have 60-tonne lorries, which is why it is right to allow Member States to decide for themselves what their national weight limit should be. However this should not be taken as giving a green light to 60-tonne lorries per se, nor should it be seen as a kind of 'thin end of the wedge' scenario. Sadly, Mrs Ayala Sender's excellent report has been given an unjust hearing because members and the media have highlighted just one section of it - namely 60-tonne mega lorries. It is right therefore to reiterate yet again that there will be no compulsion on Member States to introduce them on their national networks. I am voting in favour of the report by Inés Ayala Sender on freight transport logistics in Europe - the key to sustainable mobility. Mrs Ayala Sender has presented a very good report that provides a thorough analysis of this important issue. Without an effective logistics sector, aims concerning growth, employment and increasing the attractiveness of the European Union for investors and employees - in other words, the main pillars of the Lisbon Strategy - cannot be achieved. Logistics are an important element in the development of Europe and its competitiveness in the international arena. Logistical activities taken as a whole constitute 13% of GDP in the EU. We should also bear in mind the enormous impact of the right logistical solutions in restricting environmental pollution, and how they help to limit energy consumption. My view is that we should support a report that is aimed at helping to shape a plan of action in the area of logistics at European level. I voted in favour of the motion for a resolution by the Committee on Employment and Social Affairs, in which it says that the European Employment Services (EURES) network should become an important European labour market communication platform and a one-stop shop for workers' geographical and occupational mobility. This one-stop shop should aim to remove obstacles, especially arising from work-related social security questions, and to extend the knowledge of workers about their individual rights. Geographical and occupational mobility is a crucial instrument for the success of the Revised Lisbon Strategy and more generally for the proper operation of the internal market on the basis of the social market economy. It is an important challenge for the introduction of 'flexicurity' approaches to employment, that is, approaches allowing greater flexibility in the management of human resources while providing the job security expected by our fellow citizens. I voted in favour of the resolution on the EURES Activity Report 2004-2005 on the contribution of EURES to a single European labour market. I believe that geographical and occupational mobility is a crucial instrument for the success of the Revised Lisbon Strategy. In this regard, I consider that the European Commission should promote further the geographical and occupational mobility of workers through the increased budget line for 2007 in order to support projects in the area of transnational recruitment and cross-border partnerships. The EURES network is presented as a possible European labour market communication platform, that is, as a factor which could help to encourage workers' geographical and occupational mobility. It should also help to address the present shortcomings in terms of information provided in order to avoid the horrific situations facing workers in various countries where they have to go in order to work, generally because of unemployment in their own country, as is the case with Portuguese workers. We must improve information on social security and on workers' rights with regard to holidays, pay, sickness benefit, housing benefit and benefits for education and training. We need to ensure that the rights of workers going to work in a country other than their country of origin are duly recognised and upheld. One serious issue that needs to be addressed is the lack of controls. It is well known that workers are often required to work long hours, without proper housing, even with no contract of employment, and are paid much less than initially agreed. These issues must be addressed if we are to achieve trouble-free worker mobility. (CS) I supported the report aimed at contributing to a reduction in alcohol consumption where it is excessive and hazardous. I also support the 0.00% limit but for professional drivers only. I am against warning labels applied indiscriminately, as I consider it non-committal, as well as falling outside the EU's competence. I believe that it is the responsibility of the national parliaments to adopt such measures, not to be applied indiscriminately, not to be populist or non-committal, but rather aimed at educating targeted risk groups, threatened by excessive alcohol consumption. (FR) Mr President, the presentation of Mr Foglietta's own-initiative report has provoked comments that could suggest that all members of the Group of the European People's Party (Christian Democrats) and European Democrats underrate the serious problem of alcoholism. I cannot approve of the casualness with which the problems of alcohol dependence are concealed out of reverence for the producers of alcoholic beverages and their lobbies. The protection of young people deserves better, as does the treatment of alcoholism as a serious illness affecting everyone close to the person concerned. In the end, this own-initiative report will do nothing to change the real situation. in writing. - (SV) We have chosen to support the report in the final vote. Nevertheless, we would have preferred to see stronger provisions on warnings on spirit bottles and on the risks of alcohol use by women during pregnancy. It is regrettable that Parliament was not able to support the amendments and the parts of the existing text along those lines in the plenary. in writing. - (FR) I voted in favour of the own-initiative report by Mr Foglietta on a European Union strategy to support Member States in reducing alcohol-related harm. The Commission was right to issue a communication on the hazardous and harmful consumption of alcohol and its harmful health consequences. I support the recommendations, while not undermining the principle of subsidiarity, in favour of ambitious general objectives for the Member States with a view to curbing hazardous and harmful alcohol consumption, particularly in vulnerable social groups, such as children, young people and pregnant women. I am pleased that MEPs, in their wisdom, acknowledge that the consumption of alcoholic products can be considered as a part of the European cultural heritage and life style, and that low consumption of alcohol (10 g/day) may, under certain conditions, help prevent some diseases. in writing. - After tobacco and high blood pressure, alcohol abuse is the third most important cause of ill-health and early death in the EU, costing millions to our heath service. Related road accidents continue to claim lives while related public order offences and underage drinking are on the rise across all of Europe. The greatest tool of efficiency in decreasing alcohol-related harm is real awareness combined with enforcement. Effective education in the home and in school from primary school up is paramount. Women and men should be better informed about the risks of alcohol during pregnancy and about FASD in particular and I support the original language of the report emphasising the appropriate warning on the package of alcoholic beverages which may prevent women from drinking alcohol before and during pregnancy. I call on the Irish government to examine mandatory labelling on alcoholic beverages targeting this syndrome. I am very much in favour of asking the Commission to take steps to facilitate an independent study of the performance of innovative communication means, including labelling, as a way of reducing hazardous and harmful alcohol consumption. The June Movement supports warning labels on alcoholic beverages. When these proposals return to Parliament, we shall work towards minimum labelling rules, so that Member States can legislate in line with the precautionary principle. In my opinion, the problems associated with alcohol abuse are taking on worrying proportions in all EU Member States. Beyond the traditional convivial consumption of alcohol, which varies from region to region and Member State to Member State, it is necessary to remember that regular, excessive consumption of alcohol has a harmful impact on health and serious, direct consequences: road accidents and antisocial behaviour. Consequently, as a matter of urgency we need to remind alcohol producers and distributors of their responsibilities, to ask operators in the sector to provide the necessary support, to involve schools and families, to send out a message providing young people with positive examples and to increase awareness of risks among the more vulnerable sections of society. in writing. - (PT) The report merely broaches, without going into detail, the central issue of the underlying reasons for alcohol abuse and therefore has the drawback of taking what we might call a cognitive/repressive approach based on the process of assessing the risk/threat/punishment balance. It should be borne in mind that any addictive drug and any addictive behaviour have their own characteristics. The report mentions the need for effective conclusions to be drawn based on collected data, but it seems to embark upon a road leading towards a foregone conclusion. Before tackling the grand question of 'alcohol and the workplace' we ought to be stressing the capital importance of role models in the formation of young people's values and attitudes. Even occupational health, which ought to play a central role here in prevention and therapeutic guidance, is seen as an extension of the repressive/exploiting arm of the employer rather than an independent mechanism for preventing health problems and promoting health. A budgetary item should be created to fund programmes supporting workers who are suffering from workplace stress, excessive workloads, unemployment and job insecurity, directed at identifying and treating alcohol dependence, improving working conditions, preventing sickness and promoting health. in writing. - (SV) The June List has chosen to vote against the report and several of the amendments. Alcohol policy must be a national matter and cannot therefore be shaped at EU level. Each Member State has its own drinking culture which must form the basis for its citizens' work to reduce alcohol-related harm. International advances are being made in this area, as in nearly all others, as countries find their way along different paths. By learning lessons from the experiences of other countries, each country can then develop its own alcohol strategy in the best possible way. Such institutional competition among countries is the reason for the European countries' historical successes in nearly every area. Parliament must not hamper that competition by pushing forward homogenisation at EU level. I voted in favour of this report, which makes a number of concrete proposals to prevent alcohol abuse among vulnerable groups such as young people and pregnant women. The report does not demonise moderate consumption of wine (except in the specific case of pregnant women), which is part of our culture and traditions, but addresses alcohol abuse. I am also delighted with the proposed measures to provide more information to pregnant women on the risks associated with alcohol consumption during pregnancy. Alcohol consumption, even in small quantities, is harmful to the foetus. Facial abnormalities, microcephaly, neurological problems with agitation, behavioural problems, cognitive problems or even mental retardation: these are some of the risks for the child. Lastly, I am satisfied with the proposal to introduce appropriate communication directed at pregnant women through healthcare services. We would all like to combat hazardous and harmful alcohol consumption, particularly by young people, whose latest fashionable excess is what the Germans call Koma-Saufen, a term well understood in my own country. I recognise the European Union's competence in dealing with public health problems and the role it has to play to encourage the exchange of information and best practices among Member States. Unfortunately, the resolution only highlights the harmful consequences of alcohol and not the benefits of moderate consumption. Indeed, it is scientifically proven that wine consumed in moderation has a preventive effect against cardiovascular diseases, cancer and dementia. But this valuable information is prohibited on labels by European regulations. Why warn women before and during pregnancy and ignore the effect of alcoholism on the men procreating? Why recommend higher taxes on alcoholic beverages when it is clear that alcoholism is worst in countries with very high taxes? I would like to underline the fact that there can be no question of setting EU level blood alcohol content limits for all drivers. Zero tolerance of drivers who commit offences, whether or not drink-drivers, would be more effective in fighting the increase in the number of road accident victims. in writing. - I voted in favour of the above-mentioned report and welcome the inclusion of an amendment to paragraph 16, which I voted in favour of, highlighting the harmful effects of consuming alcohol during pregnancy. Currently, Member States may use labelling to inform consumers about the potential negative effects of consuming alcohol, and this is something that the Irish government should certainly consider. However, meaningful progress in terms of labelling can only be achieved through a degree of EU harmonisation in this area. I look forward to the publication of the Commission's study on the performance of innovative means of communication to reduce hazardous and harmful alcohol consumption before 1 January 2010, as called for in the above-mentioned report. in writing. - I supported this report and am pleased that there will now be a real effort to tackle under-age and binge drinking. I support the recommendation also that the blood alcohol limit be as close to 0.00% as possible especially for new drivers although I realise that a 0.00% limit is impractical. I believe that alcopops must be separated from soft drinks in supermarkets and I am pleased that the report highlights this. It is all very well to legislate on milk, on its distribution in schools or the army, or on the creation of a new category, but the dairy sector is something else. In the 1980s, the Commission in Brussels told us that there were milk lakes and butter mountains. As with cereals, then, a policy of 'Malthusian bureaucracy' was introduced. Under the impetus of the French Agriculture Minister, Michel Rocard, milk quotas were invented. That is, rationing, the deliberate fabrication of scarcity. For the first time in the history of humanity, people were preventing themselves from producing, and were rejecting the riches offered naturally by nature. Worse still, to be certain of achieving scarcity, we went as far as the daft premium for the slaughter of cattle. What was bound to happen has happened. The barriers to production have limited production. From milk lakes to the Aral Sea of milk. There is a shortage of butter. Prices are rising. This shortage was organised, in the same way as for wheat. in writing. - Foetal Alcohol Syndrome (FAS) and Foetal Alcohol Spectrum Disorder (FASD) need to be seriously considered as a matter of urgency. FAS warnings on alcohol products, similar to those in the USA, combined with a public health education campaign are an effective way of warning of the impact of drinking while pregnant. There is no safe level of alcohol consumption during pregnancy and women deserve to know the facts. The alcohol industry must act as a matter of urgency. Also, all Members who have a financial interest in the alcohol industry should declare an interest.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM8-K Current Report Pursuant to Section13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported):October 3, 2014 GRANT PARK FUTURES FUND LIMITED PARTNERSHIP (Exact Name of Registrant as Specified in its Charter) Illinois 000-50316 36-3596839 (State or other jurisdiction of incorporation) (Commission file number) (I.R.S. employer identification no.) c/o Dearborn Capital Management, L.L.C. 626 West Jackson Blvd., Suite 600 Chicago, Illinois (Zip Code) (Address of principal executive offices) Registrant’s telephone number, including area code:(312) 756-4450 Not Applicable (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (See General InstructionA.2 below): ¨ Written communications pursuant to Rule425 under the Securities Act (17CFR230.425) ¨ Soliciting material pursuant to Rule14a-12 under the Exchange Act (17CFR240.14a-12) ¨ Pre-commencement communications pursuant to Rule14d-2(b) under the Exchange Act (17CFR240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule20e-4(c) under the Exchange Act (17CFR240.20e-4(c)) Item 7.01.Regulation FD Disclosure. Attached as Exhibit99.1 is a copy of the Weekly Commentary for the week ended October 3,2014 of Grant Park Futures Fund Limited Partnership, which is incorporated herein by reference. Note: the information in this report (including the exhibit) is furnished pursuant to Item 7.01 and shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section, or incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.This report will not be deemed a determination or an admission as to the materiality of any information in the report that is required to be disclosed solely by Regulation FD. Item 9.01. Financial Statements and Exhibits. (d) Exhibit 99.1 Weekly Commentary for the Week Ended October 3, 2014 2 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. GRANT PARK FUTURES FUND LIMITED PARTNERSHIP By: Dearborn Capital Management, L.L.C. Date:October 7, 2014 By: /s/Maureen O’Rourke Maureen O’Rourke Chief Financial Officer 3 INDEX TO EXHIBITS Exhibit Weekly Commentary for the Week Ended October 3, 2014 4

Name: Commission Directive 93/86/EEC of 4 October 1993 adapting to technical progress Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances Type: Directive Subject Matter: electronics and electrical engineering; consumption; natural and applied sciences; environmental policy; deterioration of the environment; marketing Date Published: 1993-10-23 23.10.1993 EN Official Journal of the European Communities L 264/51 COMMISSION DIRECTIVE 93/86/EEC of 4 October 1993 adapting to technical progress Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Directive 75/442/EEC of 15 July 1975 on waste (1), as last amended by Directive 91/692/EEC (2), and in particular Article 18 thereof, Having regard to Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (3) and in particular Article 10 thereof, Whereas detailed arrangements should be established for the making system provided for in Article 4 of Directive 91/157/EEC; Whereas appliances need not be marked, since Annex II to Directive 91/157/EEC provides for a special information system for appliances from which the consumer cannot easily remove the battery or accumulator; Whereas there is a need for a symbol clearly showing that batteries or accumulators covered by Directive 91/157/EEC should be collected separately from other household waste; Whereas the use of this symbol for batteries and accumulators covered by Directive 91/157/EEC must be protected; Whereas the measures provided for in this Directive are in accordance with the opinion delivered by the Committee for the Adaptation to Scientific and Technical Progress of Community Legislation on Waste, HAS ADOPTED THIS DIRECTIVE: Article 1 1. This Directive establishes the detailed arrangements for the marking system envisaged in Article 4 of Directive 91/157/EEC on batteries and accumulators covered by that Direcctive and manufactured for sale in, imported into, the Community on or after 1 January 1994. 2. The batteries and accumulators referred to in paragraph 1 which are produced in, or imported into, the Community before 1 January 1994 may be marketed without the symbols provided for in Articles 2 and 3 until 31 December 1995. Article 2 The symbol indicating separate collection shall consist of one of the roll-out containers crossed through, as shown below: The decision on the choice of symbol to be used on batteries and accumulators covered by Directive 91/157/EEC shall be made by the person responsible for marking as described in Article 5 of this Directive. The use of the two symbols shall be considered equivalent throughout the Community. Member States shall inform the public of the meaning of both symbols and grant them equal status in their national provisions regarding batteries and accumulators covered by Directive 91/157/EEC. The use of either symbol shall not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Article 3 The symbol indicating the heavy-metal content shall consist of the chemical symbol for the metal concerned, Hg, Cd or Pb according to the type of battery or accumulator concerned, as described in Annex I to Directive 91/157/EEC. Article 4 1. The symbol described in Article 2 shall cover 3 % of the area of the largest side of the battery or accumulator, up to a maximum size of 5 x 5 cm. For cylindrical cells the symbol shall cover 3 % of half the surface area of the battery or accumulator and shall have a maximum size of 5 x 5 cm. Where the size of the battery or accumulator is such that the symbol would be smaller than 0,5 x 0,5 cm, the battery or accumulator need not be marked but a symbol measuring 1 x 1 cm shall be printed on the packaging. 2. The symbol referred to in Article 3 shall be printed beneath the symbol referred to in Article 2. It shall cover an area of at least one quarter the size of the symbol described in paragraph 1 of this Article. 3. The symbols shall be printed visibly, legibly and indelibly. Article 5 Member States shall take the necessary steps to ensure that the marking complies with the provisions of this Directive and is carried out by the manufacturer or his authorized representative established in the Member State concerned or else by the person responsible for placing the batteries or accumulators on the national market. Article 6 Member States shall adopt appropriate measures to ensure full implementation of all the provisions of this Directive, in particular as regards observance of the symbols referred to in Articles 2 and 3. Member States shall lay down the penalties to be applied in the event of an infringement of the measures adopted to comply with this Directive; such penalties must be effective, proportionate and deterrent in their effect. Article 7 Member States shall take the measures necessary to comply with this Directive no later than 31 December 1993. They shall immediately inform the Commission thereof. When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States. Article 8 This Directive is addressed to the Member States. Done at Brussels, 4 October 1993. For the Commission Yannis PALEOKRASSAS Member of the Commission (1) OJ No L 194, 25. 7. 1975, p. 39. (2) OJ No L 377, 31. 12. 1991, p. 48. (3) OJ No L 78, 26. 3. 1991, p. 38.

Exhibit CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in the Registration Statement of Empire Resorts, Inc. and subsidiaries on Form S-3 of our report dated March 14, 2008 relating to the consolidated financial statements and the effectiveness of internal control over financial reporting of Empire Resorts, Inc. and subsidiaries, appearing in the Annual Report on Form 10-K of Empire Resorts, Inc. and subsidiaries for the year ended December 31, 2007. We also consent to the reference to us under the heading "Experts" in such Registration

Exhibit 31.2 Certification of the Chief Financial Officer Pursuant to Rule 13a-14 or 15d-14 of theSecurities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 I, Taiwo Aimasiko, certify that: 1.I have reviewed this annual Report on Form 10-K of Bemax 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.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 13a-15(f) and 15(d)-15(f)) for the Registrant and have: a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c)Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d)Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the period covered by the quarter report that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting. 5. I have disclosed, based on my most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions): a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting. Date: August 10, 2015 /s/ Taiwo Aimasiko Taiwo Aimasiko Chief Financial Officer

Name: Commission Regulation (EEC) No 3243/80 of 15 December 1980 authorizing the conclusion of long-term private storage contracts for certain table wines for the 1980/81 wine year Type: Regulation Date Published: nan No L 341 / 12 Official Journal of the European Communities 16. 12. 80 COMMISSION REGULATION (EEC) No 3243/80 of 15 December 1980 authorizing the conclusion of long-term private storage contracts for certain table wines for the 1980/81 wine year THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organiza ­ tion of the market in wine (*), as last amended by Regulation (EEC) No 2930/80 (2), and in particular Articles 7 (6), 9 (5), 12a (5) and 65 thereof, Whereas the estimates for the 1980/81 wine year show that the quantity of table wines available at the begin ­ ning of that year exceeds total foreseeable require ­ ments for the said year by more than four months' consumption ; whereas, consequently, the conditions for authorizing the conclusion of long-term storage contracts under Article 7 (4) of the abovementioned Regulation are fulfilled ; Whereas the abovementioned estimates reveal the existence of surpluses for all types of table wine and for table wines which stand in close economic rela ­ ship to those types of table wine ; whereas provision should therefore be made to enable long-term contracts to be concluded for those types of table wine ; Whereas Article 9 (4) of Regulation (EEC) No 337/79 lays down that, for long-term contracts, the amount of the aid may be increased to 20 % ; whereas, in view of the conditions prevailing in this wine year, and in particular of the quantities available, which are such as to justify the conclusion of long-term contracts , provi ­ sion should be made for increasing by 10 % the rates of aid specified in Article 1 1 of Commission Regula ­ tion (EEC) No 2600/79 (3 ), as amended by Regulation (EEC) No 2252/80 (4 ) ; whereas, however, a 20 % increase should be provided for contracts for table wines of a higher quality, and therefore of a higher price, than the average table wines which may be subject to long-term storage contracts ; Whereas, in order to relieve the market on a more lasting basis and to prevent further difficulties after the expiry of the short-term contracts already concluded, it appears advisable to permit the conclu ­ sion of long-term storage contracts for wine covered by short-term contracts concluded before the date of entry into force of this Regulation ; Whereas, it is necessary, for the purposes of imple ­ menting Article 12a of Regulation (EEC) No 337/79 , to know the maximum quantity of table wine subject to storage contract which may be distilled as provided for in the said Article ; whereas producers should therefore be required to provide intervention agencies with the necessary information ; whereas the very small quantities covered by long-term storage contracts for table wines of types R III , A II and A III do not justify requiring producers to provide the said information ; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Manage ­ ment Committee for Wine, HAS ADOPTED THIS REGULATION : Article 1 1 . Authorization is hereby given for the conclusion of long-term storage contracts for all types of table wine and for table wines which stand in close economic relationship to those types of table wine , provided that they meet the following conditions : ( ») OJ No L 54, 5. 3 . 1979, p. 1 . 2) OJ No L 305 , 14. 11 . 1980 , p. 1 . P ) OJ No L 297, 24. 11 . 1979 , p . 15 . (*) OJ No L 227, 29 . 8 . 1980 , p. 10 . 6. 12. 80 Official Journal of the European Communities No L 341 / 13 I. White wines 10 % vol ; 4-5 grams per litre ; nine milliequivalents per litre ; 155 milligrams per litre ; 2-5 grams per litre ; (a) minimum actual alcoholic strength : (b) minimum total acidity (expressed as tartaric acid) : (c) maximum volatile acidity : (d ) maximum sulphur dioxide content : (e) maximum residual sugar content : (f) resistance with exposure to air : (g) absence of abnormal taste. II . Red wines (a) minimum actual alcoholic strength : (b) minimum total acidity (expressed as tartaric acid) : good for 24 hours ; 10 % vol ; five grams per litre, 4-5 grams per litre ; 12 milliequivalents per litre, ” tor wine or an actual alcoholic strength below 1 1 % vol : ” for wine of an actual alcoholic strength of 1 1 % vol or more : (c) maximum volatile acidity : ” for wine of an actual alcoholic strength below 1 2*5 % vol : ” for wine of an actual alcoholic strength of 1 2-5 % vol or more : (d) maximum sulphur dioxide content : (e) maximum residual sugar content : (f) resistance with exposure to air : (g) absence of abnormal taste ; (h) absence of hybrids . 14 milliequivalents per litre 1 20 milligrams per litre ; 2-5 grams per litre ; good for 24 hours ; Rose wines must comply with the conditions laid down above for red wines except as regards their content of sulphur dioxide, for which the same limits apply as in the case of white wines . Conditions (a), (d) and (e) shall not apply to wines of types R III , A II and A III . 2. For the purposes of this Regulation 'close economic relationship means, for table wines of type : ” A I , those white table wines with an actual alcoholic strength of not less than 1 2 % vol and not more than 14 % vol, not belonging to type A II or type A III, ” R I, those red wines with an actual alcoholic strength of not less than 12 % vol and not more than 12-5 % vol, not belonging to type R III , ” R II, those red table wines with an actual alcoholic strength of more than 1 2-5 % vol and not more than 14.5 % vol, not belonging to type R III . No L 341 / 14 Official Journal of the European Communities 16 . 12. 80 Article 2 For the storage contracts referred to in Article 1 , the aid provided for in Article 11 of Regulation (EEC) No 2600/79 shall be increased by 10 % . However, the said aid shall be increased by 20 % in the case of table wines meeting the following conditions : I. White wines (a) minimum actual alcoholic strength : (b) minimum total acidity (expressed as tartaric acid) : (c ) maximum volatile acidity : (d) maximum sulphur dioxide content : (e) maximum residual sugar content : ( f) resistance with exposure to air : (g) absence of abnormal taste . 1 1 % vol ; 4-5 grams per litre ; eight milliequivalents per litre ; 135 milligrams per litre ; two grams per litre ; good for 24 hours ; II . Red wines 1 1 % vol ; 4-5 grams per litre ; 1 1 milliequivalents per litre ; 95 milligrams per litre ; two grams per litre ; good for 24 hours ; (a) minimum actual alcoholic strength : (b) minimum total acidity (expressed as tartaric acid) : (c ) maximum volatile acidity : (d) maximum sulphur dioxide content : (e ) maximum residual sugar content : ( f) resistance with exposure to air : (g) absence of abnormal taste ; (h ) absence of hybrids . Rose wines must comply with the conditions laid down above for red wines except as regards their sulphur dioxide content for which the same limits as those fixed for white wines shall apply. Conditions (a), (d) and (e) shall not apply to table wines of types R III , A II and A III . Article 3 Short-term contracts concluded before the date of entry into force of this Regulation , shall , at the request of the party concerned, be terminated in respect of those quantities for which at the time of such termination that party enters into a long-term storage contract . In this event, for the quantities thus placed under a long-term storage contract, entitle ­ ment to short-term storage aid shall not be lost in respect of the period during which they were the subject of the short-term contract . Article 4 1 . The conclusion of long-term storage contracts except for those in respect of table wines of types R III , A II and A III shall be subject to the producer advising the interven ­ tion agency of the total quantity of table wine he has produced during the current marketing year . For this purpose the producer shall submit : ” for wine obtained by fermentation of fresh grapes , a copy of the harvest declarations drawn up pursuant to Article 2 of Commission Regulation No 134 or an equivalent certificate issued by the competent authority, 16. 12. 80 Official Journal of the European Communities No L 341 / 15 ” for wine obtained by fermentation of grape must or of partially-fermented grape must, a copy of the accompanying documents) drawn up for transport to the winemaking plants of the musts he has purchased. 2. The Member States shall communicate to the Commission, not later than 10 May 1981 , the maximum quantity of table wine subject to long-term storage contract which may be distilled as provided for in Article 12a (2) of Regulation (EEC) No 337/79 . Article 5 This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities. It shall apply with effect from 16 December 1980 . This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels , 15 December 1980 . For the Commission Finn GUNDELACH Vice-President

UNITED STATESSECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM N-CSR CERTIFIED SHAREHOLDER REPORT OF REGISTEREDMANAGEMENT INVESTMENT COMPANIES Investment Company Act file number: (811-05346) Exact name of registrant as specified in charter: Putnam Variable Trust Address of principal executive offices: One Post Office Square, Boston, Massachusetts 02109 Name and address of agent for service: Robert T. Burns, Vice PresidentOne Post Office SquareBoston, Massachusetts 02109 Copy to: Bryan Chegwidden, Esq.Ropes & Gray LLP1211 Avenue of the AmericasNew York, New York 10036 Registrant’s telephone number, including area code: (617) 292-1000 Date of fiscal year end: December 31, 2014 Date of reporting period : January 1, 2014 — December 31, 2014 Item 1. Report to Stockholders: The following is a copy of the report transmitted to stockholders pursuant to Rule 30e-1 under the Investment Company Act of 1940: Message from the Trustees Dear Shareholder: The falling price of oil has captured headlines in recent months and is having a sustained effect on markets and economies worldwide. Cheaper oil allows many consumers and businesses to shift spending to other priorities. At the same time, the decline reflects greater pessimism about global growth, and it is having a negative impact on the energy sector — not just in the United States, but wherever energy is a key export. This change in the investing environment has contributed to an increase in market volatility. Although the U.S. economy continues to grow, economic challenges in Europe, China, and Japan are causing uncertainty. Compared with recent years, we may see more tempered returns from equity and fixed-income markets. While a number of positive trends continue, including an improving housing market and a brighter employment situation, investors should also be alert to a possible increase in short-term interest rates that is widely expected to occur in 2015. History suggests that rising rates could generate headwinds for markets. In all types of market conditions, Putnam offers a wide range of flexible strategies. Our experienced investment teams employ new ways of thinking about building portfolios for both the opportunities and risks in today’s markets. In this dynamic environment, it may be an opportune time for you to meet with your financial advisor to ensure that your portfolio is properly aligned with your goals and tolerance for risk. As always, thank you for investing with Putnam. Performance summary (as of 12/31/14) Investment objective Capital growth and current income Net asset value December 31, 2014 Class IA: $26.25 Class IB: $26.12 Total return at net asset value Russell 1000 (as of 12/31/14)* Class IA shares† Class IB shares‡ Value Index 1 year 11.04% 10.73% 13.45% 5 years 97.73 95.22 104.87 Annualized 14.61 14.32 15.42 10 years 82.59 78.05 102.31 Annualized 6.21 5.94 7.30 Life 1,054.03 993.68 1,422.86 Annualized 9.51 9.30 10.68 For a portion of the periods, the fund had expense limitations, without which returns would have been lower. * Recent performance may have benefited from one or more legal settlements. † Class inception date: February 1, 1988. ‡ Class inception date: April 6, 1998. The Russell 1000 Value Index is an unmanaged index of those companies in the large-cap Russell 1000 Index chosen for their value orientation. Data represent past performance. Past performance does not guarantee future results. More recent returns may be less or more than those shown. Investment return and principal value will fluctuate, and you may have a gain or a loss when you sell your shares. Performance information does not reflect any deduction for taxes a shareholder may owe on fund distributions or on the redemption of fund shares. All total return figures are at net asset value and exclude contract charges and expenses, which are added to the variable annuity contracts to determine total return at unit value. Had these charges and expenses been reflected, performance would have been lower. Performance of class IB shares before their inception is derived from the historical performance of class IA shares, adjusted to reflect the higher operating expenses applicable to such shares. For more recent performance, contact your variable annuity provider who can provide you with performance that reflects the charges and expenses at your contract level. Allocations are shown as a percentage of the fund’s net assets. Cash and net other assets, if any, represent the market value weights of cash, derivatives, short-term securities, and other unclassified assets in the portfolio. Summary information may differ from the portfolio schedule included in the financial statements due to the inclusion of derivative securities, any interest accruals, the exclusion of as-of trades, if any, and the use of different classifications of securities for presentation purposes. Holdings and allocations may vary over time. *The unclassified sector includes exchange-traded funds and other securities not able to be classified by sector. Putnam VT Growth and Income Fund 1 Report from your fund’s manager U.S. equity markets climbed to record levels by the end of 2014. What contributed to the rally? U.S. stocks achieved solid gains in 2014, outperforming bonds and international stocks. The rally was supported by a strengthening domestic economy, rising corporate profits, and low interest rates. Stocks experienced some bouts of volatility during the 12-month reporting period ended December 31, 2014, as the Federal Reserve began a significant transition in U.S. monetary policy, and major foreign central banks stepped up their stimulus programs to fight slowing growth in their respective economies. Geopolitical tensions in the Middle East and Ukraine also dampened performance at various points throughout 2014. However, with economic prospects appearing favorable in the United States, surging demand propelled stock prices higher. How did Putnam VT Growth and Income Fund perform during the 12 months ended December 31, 2014? The portfolio delivered solid performance but fell short of its benchmark, the Russell 1000 Value Index. This was due in part to the portfolio’s exposure to international markets, which performed relatively poorly. While the portfolio’s international investments represented a small portion of total assets, the benchmark lacks any international exposure. The top contributing sectors were industrials, health care, and consumer staples, while financials, consumer discretionary, and utilities detracted most from performance. What holdings had the greatest influence on performance for the year? As active fund managers, we have the flexibility to invest in stocks that are not included in our benchmark index. One of the top contributors for the period was Alibaba Group Holdings, the China-based e-commerce company whose $25 billion initial public offering [IPO] was the largest in history. The stock price soared in the aftermath of its IPO in September, and in early November, the company announced strong sales growth in its first financial reporting as a public company. At the same time, not owning or holding less of a stock included in the benchmark can influence performance. During the period, our decision to not hold Berkshire Hathaway hindered the portfolio’s performance relative to the benchmark. In the wake of falling oil prices, energy stocks were the leading detractors. Underweighting holdings such as Exxon Mobil and Chevron was beneficial relative to the benchmark, but overweight positions in QEP Resources and Gulfport Energy detracted from relative results. What are your expectations for stocks after such a rewarding performance in 2014? There are a number of factors that could support equity performance in the year ahead. The U.S. economy appears to be growing, and profits for businesses have continued to develop favorably. Despite their impressive earnings growth in 2014, I believe that corporations should be able to generate high-single-digit growth in 2015. In addition, U.S. consumers have benefited from continued low interest rates, a healing housing market, and improving employment along with moderate wagegrowth. Since we have added yet another 12-month gain to the market’s impressive multiyear rally, I believe the risk of a market downturn could become more likely, and it is therefore time to consider more defensive strategies. In 2014, I was positioning the portfolio with a focus on stocks with growth characteristics. Today, I am proceeding with more caution and placing slightly more emphasis on capital preservation. The length and magnitude of this market rally has made it more challenging to find compelling investment opportunities. In this environment, I believe that it is important to be cautious and selective in your investment choices and to incorporate rigorous fundamental research — which is exactly how we approach stock selection for the portfolio. The views expressed in this report are exclusively those of Putnam Management and are subject to change. They are not meant as investment advice. Please note that the holdings discussed in this report may not have been held by the fund for the entire period. Portfolio composition is subject to review in accordance with the fund’s investment strategy and may vary in the future. Consider these risks before investing: Value stocks may fail to rebound, and the market may not favor value-style investing. Income provided by the fund may be reduced by changes in the dividend policies of, and the capital resources available at, the companies in which the fund invests. The value of stocks in the fund’s portfolio may fall or fail to rise over extended periods of time for a variety of reasons, including both general financial market conditions and factors related to a specific company or industry. You can lose money by investing in the fund. Your fund’s manager Portfolio Manager Robert D. Ewing, CFA, is Co-Head of U.S. Equities at Putnam. He joined Putnam in 2008 and has been in the investment industry since 1990. Your fund’s manager may also manage other accounts advised by Putnam Management or an affiliate, including retail mutual fund counterparts to the funds in Putnam Variable Trust. 2 Putnam VT Growth and Income Fund Understanding your fund’s expenses As an investor in a variable annuity product that invests in a registered investment company, you pay ongoing expenses, such as management fees, distribution fees (12b-1 fees), and other expenses. Using the following information, you can estimate how these expenses affect your investment and compare them with the expenses of other funds. You may also pay one-time transaction expenses, which are not shown in this section and would result in higher total expenses. Charges and expenses at the insurance company separate account level are not reflected. For more information, see your fund’s prospectus or talk to your financial representative. Review your fund’s expenses The two left-hand columns of the Expense per $1,000 table show the expenses you would have paid on a $1,000 investment in your fund from July 1, 2014, to December 31, 2014. They also show how much a $1,000 investment would be worth at the close of the period, assuming actual returns and expenses. To estimate the ongoing expenses you paid over the period, divide your account value by $1,000, then multiply the result by the number in the first line for the class of shares you own. Compare your fund’s expenses with those of other funds The two right-hand columns of the Expense per $1,000 table show 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 costs) of investing in the fund with those of other funds. All shareholder reports of mutual funds and funds serving as variable annuity vehicles 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. Expense ratios Class IA Class IB Total annual operating expenses for the fiscal year ended 12/31/13* 0.62% 0.87% Annualized expense ratio for the six-month period ended 12/31/14† 0.60% 0.85% *Fiscal-year expense information in this table is taken from the most recent prospectus, is subject to change, and may differ from that shown for the annualized expense ratio and in the financial highlights of this report. †For the fund’s most recent fiscal half year; may differ from expense ratios based on one-year data in the financial highlights. Expense per $1,000 Expenses and value for a Expenses and value for a $1,000 investment, assuming $1,000 investment, assuming a actual returns for the 6 months hypothetical 5% annualized return ended 12/31/14 for the 6 months ended 12/31/14 Class IA Class IB Class IA Class IB Expenses paid per $1,000*† $3.06 $4.33 $3.06 $4.33 Ending value (after expenses) $1,021.80 $1,020.30 $1,022.18 $1,020.92 *Expenses for each share class are calculated using the fund’s annualized expense ratio for each class, which represents the ongoing expenses as a percentage of average net assets for the six months ended 12/31/14. The expense ratio may differ for each share class. †Expenses based on actual returns are calculated by multiplying the expense ratio by the average account value for the period; then multiplying the result by the number of days in the period; and then dividing that result by the number of days in the year. Expenses based on a hypothetical 5% return are calculated by multiplying the expense ratio by the average account value for the six-month period; then multiplying the result by the number of days in the six-month period; and then dividing that result by the number of days in the year. Putnam VT Growth and Income Fund 3 Report of Independent Registered Public Accounting Firm To the Trustees of Putnam Variable Trust and Shareholders of Putnam VT Growth and Income Fund: In our opinion, the accompanying statement of assets and liabilities, including the portfolio, and the related statements of operations and of changes in net assets and the financial highlights present fairly, in all material respects, the financial position of Putnam VT Growth and Income Fund (the “fund”) at December 31, 2014, and the results of its operations, the changes in its net assets and the financial highlights for each of the periods indicated, in conformity with accounting principles generally accepted in the United States of America. These financial statements and financial highlights (hereafter referred to as “financial statements”) are the responsibility of the fund’s management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these financial statements 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. An audit 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, and evaluating the overall financial statement presentation. We believe that our audits, which included confirmation of investments owned at December 31, 2014 by correspondence with the custodian, brokers, and transfer agent, provide a reasonable basis for our opinion. PricewaterhouseCoopers LLP Boston, Massachusetts February 6, 2015 4 Putnam VT Growth and Income Fund The fund’s portfolio 12/31/14 COMMON STOCKS (95.8%)* Shares Value Aerospace and defense (6.4%) Airbus Group NV (France) 85,076 $4,225,488 Embraer SA ADR (Brazil) S 51,800 1,909,348 General Dynamics Corp. 87,100 11,986,702 Honeywell International, Inc. 146,000 14,588,320 L-3 Communications Holdings, Inc. 90,700 11,447,247 Northrop Grumman Corp. 105,800 15,593,862 Raytheon Co. 75,000 8,112,750 Rockwell Collins, Inc. 32,800 2,770,944 United Technologies Corp. 87,500 10,062,500 Airlines (1.4%) American Airlines Group, Inc. 130,800 7,014,804 Delta Air Lines, Inc. 123,900 6,094,641 Japan Airlines Co., Ltd. (Japan) UR 132,000 3,855,797 Auto components (0.4%) Dana Holding Corp. S 85,000 1,847,900 Johnson Controls, Inc. 60,500 2,924,570 Automobiles (0.7%) Ford Motor Co. 162,000 2,511,000 General Motors Co. 165,900 5,791,569 Banks (10.3%) Bank of America Corp. 1,091,645 19,529,529 Citigroup, Inc. 554,250 29,990,468 Fifth Third Bancorp 190,900 3,889,588 JPMorgan Chase & Co. 519,986 32,540,724 KeyCorp 334,800 4,653,720 Regions Financial Corp. 631,200 6,665,472 SVB Financial Group † 18,300 2,124,081 Wells Fargo & Co. 555,420 30,448,124 Beverages (0.9%) Coca-Cola Enterprises, Inc. 88,300 3,904,626 Dr. Pepper Snapple Group, Inc. 18,600 1,333,248 PepsiCo, Inc. 65,600 6,203,136 Biotechnology (0.2%) Gilead Sciences, Inc. † 22,100 2,083,146 Capital markets (4.1%) Carlyle Group LP (The) 87,298 2,400,695 Charles Schwab Corp. (The) 284,300 8,583,017 E*Trade Financial Corp. † 61,300 1,486,832 Goldman Sachs Group, Inc. (The) 30,269 5,867,040 Greenhill & Co., Inc. 55,100 2,402,360 KKR & Co. LP 257,398 5,974,208 Morgan Stanley 310,964 12,065,403 State Street Corp. 125,800 9,875,300 WisdomTree Investments, Inc. S 161,300 2,528,378 Chemicals (2.4%) Axiall Corp. 72,700 3,087,569 CF Industries Holdings, Inc. 13,800 3,761,052 Dow Chemical Co. (The) 216,400 9,870,004 Huntsman Corp. 184,900 4,212,022 Linde AG (Germany) 15,893 2,964,359 COMMON STOCKS (95.8%)* cont. Shares Value Chemicals cont. Monsanto Co. 39,100 $4,671,277 Symrise AG (Germany) 37,204 2,256,196 Commercial services and supplies (0.8%) ADT Corp. (The) S 69,287 2,510,268 Tyco International PLC 173,975 7,630,544 Communications equipment (0.7%) Cisco Systems, Inc. 309,300 8,603,180 Consumer finance (0.6%) Capital One Financial Corp. 92,072 7,600,544 Containers and packaging (0.8%) MeadWestvaco Corp. 87,800 3,897,442 Packaging Corp. of America 79,200 6,181,560 Diversified consumer services (0.3%) ITT Educational Services, Inc. † S 140,483 1,350,042 Weight Watchers International, Inc. † S 76,000 1,887,840 Diversified financial services (0.8%) CBOE Holdings, Inc. 51,300 3,253,446 CME Group, Inc. 84,200 7,464,330 Diversified telecommunication services (1.2%) AT&T, Inc. 124,800 4,192,032 Verizon Communications, Inc. 222,472 10,407,240 Electric utilities (1.8%) American Electric Power Co., Inc. 51,400 3,121,008 Edison International 85,800 5,618,184 Exelon Corp. S 275,400 10,211,832 NextEra Energy, Inc. 36,900 3,922,101 Electrical equipment (0.5%) Eaton Corp PLC 84,800 5,763,008 Electronic equipment, instruments, and components (0.3%) Corning, Inc. 170,200 3,902,686 Energy equipment and services (1.4%) Aker Solutions ASA 144A (Norway) † 119,572 658,866 Baker Hughes, Inc. 123,500 6,924,645 Ezion Holdings, Ltd. (Singapore) 1,597,640 1,354,463 Oil States International, Inc. † 33,800 1,652,820 Schlumberger, Ltd. 68,589 5,858,186 Transocean, Ltd. (Switzerland) S 86,800 1,591,044 Food and staples retail (2.2%) CVS Health Corp. 225,000 21,669,750 Wal-Mart Stores, Inc. S 70,700 6,071,716 Food products (1.8%) Hershey Co. (The) 60,400 6,277,372 Kellogg Co. 38,800 2,539,072 Kraft Foods Group, Inc. 65,700 4,116,762 Mead Johnson Nutrition Co. 38,000 3,820,520 Mondelez International, Inc. Class A 172,600 6,269,695 Health-care equipment and supplies (3.3%) Abbott Laboratories 93,600 4,213,872 Baxter International, Inc. 161,600 11,843,664 Boston Scientific Corp. † 194,500 2,577,125 Putnam VT Growth and Income Fund5 COMMON STOCKS (95.8%)* cont. Shares Value Health-care equipment and supplies cont. Covidien PLC 35,454 $3,626,235 Medtronic, Inc. 152,800 11,032,160 St. Jude Medical, Inc. 30,900 2,009,427 Zimmer Holdings, Inc. 59,500 6,748,490 Health-care providers and services (1.2%) Catamaran Corp. † 44,600 2,308,050 CIGNA Corp. 44,400 4,569,204 HCA Holdings, Inc. † 58,300 4,278,637 UnitedHealth Group, Inc. 39,600 4,003,164 Hotels, restaurants, and leisure (1.2%) Hilton Worldwide Holdings, Inc. † 233,500 6,092,015 Intrawest Resorts Holdings, Inc. † 88,827 1,060,594 Penn National Gaming, Inc. † 301,442 4,138,799 Vail Resorts, Inc. 35,600 3,244,228 Household durables (1.0%) PulteGroup, Inc. 211,800 4,545,228 Whirlpool Corp. 41,000 7,943,340 Household products (0.5%) Colgate-Palmolive Co. 38,800 2,684,572 Energizer Holdings, Inc. 25,400 3,265,424 Independent power and renewable electricity producers (1.5%) Calpine Corp. † 452,333 10,010,129 NRG Energy, Inc. 352,400 9,497,180 Industrial conglomerates (2.2%) General Electric Co. 701,370 17,723,620 Siemens AG (Germany) 91,519 10,379,189 Insurance (5.0%) ACE, Ltd. 29,400 3,377,472 Allstate Corp. (The) 45,400 3,189,350 American International Group, Inc. 273,500 15,318,735 Assured Guaranty, Ltd. 197,667 5,137,365 Chubb Corp. (The) 19,817 2,050,465 Everest Re Group, Ltd. 12,700 2,162,810 Genworth Financial, Inc. Class A † 382,100 3,247,850 Hartford Financial Services Group, Inc. (The) 285,400 11,898,326 MetLife, Inc. 142,613 7,713,937 Prudential Financial, Inc. 36,300 3,283,698 Prudential PLC (United Kingdom) 223,472 5,142,573 Internet and catalog retail (0.1%) FabFurnish GmbH (acquired 8/2/13, cost $13) (Private) (Brazil) † ∆∆ F 10 9 Global Fashion Holding SA (acquired 8/2/13, cost $636,303) (Private) (Brazil) † ∆∆ F 15,020 377,564 New Bigfoot Other Assets GmbH (acquired 8/2/13, cost $13) (Private) (Brazil) † ∆∆ F 10 9 New Middle East Other Assets GmbH (acquired 8/2/13, cost $5) (Private) (Brazil) † ∆∆ F 4 4 Zalando SE (acquired 9/30/13, cost $1,300,403) (Private) (Germany) † ∆∆ F 54,230 1,506,002 Internet software and services (0.9%) Alibaba Group Holding, Ltd. ADR (China) † S 28,000 2,910,320 AOL, Inc. † 29,000 1,338,930 Google, Inc. Class C † 12,574 6,618,954 COMMON STOCKS (95.8%)* cont. Shares Value IT Services (0.5%) Computer Sciences Corp. 63,600 $4,009,980 Fidelity National Information Services, Inc. 34,100 2,121,020 Media (3.0%) CBS Corp. Class B (non-voting shares) 81,200 4,493,608 Comcast Corp. Class A 184,000 10,673,840 DISH Network Corp. Class A † 85,500 6,232,095 Liberty Global PLC Ser. C (United Kingdom) 198,900 9,608,859 Time Warner, Inc. 59,900 5,116,658 WPP PLC (United Kingdom) 89,059 1,847,635 Metals and mining (0.8%) Barrick Gold Corp. (Canada) 153,700 1,652,275 BHP Billiton, Ltd. (Australia) 96,279 2,284,562 Freeport-McMoRan, Inc. (Indonesia) 193,152 4,512,031 Goldcorp, Inc. (Toronto Exchange) (Canada) 38,300 709,316 Newmont Mining Corp. 50,600 956,340 Multi-utilities (0.9%) Ameren Corp. 99,300 4,580,709 CMS Energy Corp. 61,500 2,137,125 PG&E Corp. 93,800 4,993,912 Multiline retail (0.4%) Macy’s, Inc. 71,300 4,687,975 Oil, gas, and consumable fuels (10.2%) Anadarko Petroleum Corp. 36,400 3,003,000 Cabot Oil & Gas Corp. 194,300 5,753,223 California Resources Corp. † 20,514 113,032 Cheniere Energy, Inc. † 34,300 2,414,720 Chevron Corp. 113,100 12,687,558 CONSOL Energy, Inc. 123,500 4,175,535 EnCana Corp. (Canada) 184,296 2,565,042 Energen Corp. 33,600 2,142,336 EOG Resources, Inc. 42,900 3,949,803 EP Energy Corp. Class A † S 267,500 2,792,700 Exxon Mobil Corp. 243,718 22,531,729 Gaztransport Et Technigaz SA (France) 31,119 1,837,847 Gulfport Energy Corp. † 107,600 4,491,224 Marathon Oil Corp. 267,600 7,570,404 MPLX LP 43,100 3,167,419 Noble Energy, Inc. 26,300 1,247,409 Nordic American Tankers, Ltd. (Norway) S 197,600 1,989,832 Occidental Petroleum Corp. 51,286 4,134,164 Peabody Energy Corp. S 242,200 1,874,628 QEP Resources, Inc. 292,400 5,912,328 Royal Dutch Shell PLC ADR (United Kingdom) 254,458 17,035,963 Scorpio Tankers, Inc. S 385,300 3,348,257 Southwestern Energy Co. † 83,300 2,273,257 Suncor Energy, Inc. (Canada) 136,815 4,345,389 Total SA ADR (France) S 75,900 3,886,080 Whiting Petroleum Corp. † 95,207 3,141,831 Paper and forest products (0.3%) Louisiana-Pacific Corp. † S 222,100 3,677,976 Personal products (0.7%) Avon Products, Inc. S 263,100 2,470,509 Coty, Inc. Class A † 326,081 6,736,833 6 Putnam VT Growth and Income Fund COMMON STOCKS (95.8%)* cont. Shares Value Pharmaceuticals (10.2%) AbbVie, Inc. 101,300 $6,629,072 Actavis PLC † 42,000 10,811,220 AstraZeneca PLC ADR (United Kingdom) 203,300 14,308,254 Bristol-Myers Squibb Co. 153,000 9,031,590 Eli Lilly & Co. 152,400 10,514,076 Johnson & Johnson 173,200 18,111,524 Merck & Co., Inc. 354,125 20,110,759 Pfizer, Inc. 658,554 20,513,957 Sanofi ADR (France) 115,300 5,258,833 Teva Pharmaceutical Industries, Ltd. ADR (Israel) S 95,100 5,469,201 Zoetis, Inc. 184,702 7,947,727 Real estate investment trusts (REITs) (0.8%) Altisource Residential Corp. R 113,427 2,200,484 American Tower Corp. R 47,700 4,715,145 Equity Lifestyle Properties, Inc. R 72,500 3,737,375 Semiconductors and semiconductor equipment (2.5%) Applied Materials, Inc. 113,900 2,838,388 Fairchild Semiconductor International, Inc. † 125,700 2,121,816 Intel Corp. 319,700 11,601,913 Lam Research Corp. 80,263 6,368,066 Micron Technology, Inc. † 255,500 8,945,055 Software (2.0%) Microsoft Corp. 230,300 10,697,435 Oracle Corp. 270,800 12,177,876 TiVo, Inc. † 210,200 2,488,768 Specialty retail (1.9%) Bed Bath & Beyond, Inc. † 56,600 4,311,222 Gap, Inc. (The) 120,000 5,053,200 Home Depot, Inc. (The) 45,700 4,797,129 Michaels Cos., Inc. (The) † 118,100 2,920,613 Office Depot, Inc. † 462,500 3,965,938 Tile Shop Holdings, Inc. † S 271,000 2,406,480 WH Smith PLC (United Kingdom) 52,798 1,101,570 Technology hardware, storage, and peripherals (3.0%) Apple, Inc. 126,700 13,985,146 Hewlett-Packard Co. 164,410 6,597,773 NetApp, Inc. 55,800 2,312,910 QLogic Corp. † 219,500 2,923,740 Samsung Electronics Co., Ltd. (South Korea) 3,551 4,268,487 SanDisk Corp. 48,600 4,761,828 Western Digital Corp. 28,200 3,121,740 Thrifts and mortgage finance (0.6%) Radian Group, Inc. S 476,387 7,965,191 Tobacco (0.6%) Philip Morris International, Inc. 100,200 8,161,290 Wireless telecommunication services (0.5%) Vodafone Group PLC ADR (United Kingdom) 181,310 6,195,363 Total common stocks (cost $876,469,365) INVESTMENT COMPANIES (0.7%)* Shares Value Vanguard MSCI Emerging Markets ETF 224,300 $8,976,486 Total investment companies (cost $9,768,512) CONVERTIBLE PREFERRED STOCKS (0.1%)* Shares Value American Tower Corp. Ser. A, $5.25 cv. pfd. R 6,472 $736,998 Total convertible preferred stocks (cost $647,207) U.S. GOVERNMENT AGENCY OBLIGATIONS (—%)* Principal amount Value Federal Home Loan Bank unsec. notes, 2.875%, June 12, 2015 i $160,000 $162,107 Total U.S. Government Agency Obligations (cost $162,107) Principal SHORT-TERM INVESTMENTS (7.8%)* amount/shares Value Putnam Cash Collateral Pool, LLC 0.20% d Shares 54,476,813 $54,476,813 Putnam Short Term Investment Fund 0.10% L Shares 43,117,683 43,117,683 SSgA Prime Money Market Fund Class N 0.04% P Shares 100,000 100,000 U.S. Treasury Bills with effective yields ranging from 0.02% to 0.12%, February 5, 2015 $159,000 158,985 U.S. Treasury Bills with an effective yield of 0.02%, January 15, 2015 130,000 129,999 U.S. Treasury Bills with an effective yield of 0.01%, January 22, 2015 81,000 80,999 U.S. Treasury Bills with effective yields ranging from 0.01% to 0.10%, January 8, 2015 159,000 158,999 Total short-term investments (cost $98,223,478) Total investments (cost $985,270,669) Key to holding’s abbreviations ADR American Depository Receipts: represents ownership of foreignsecurities on deposit with a custodian bank ETF Exchange Traded Fund Notes to the fund’s portfolio Unless noted otherwise, the notes to the fund’s portfolio are for the close of the fund’s reporting period, which ran from January 1, 2014 through December 31, 2014 (the reporting period). Within the following notes to the portfolio, references to “ASC 820” represent Accounting Standards Codification 820 Fair Value Measurements and Disclosures and references to “OTC”, if any, represent over-the-counter. * Percentages indicated are based on net assets of $1,262,451,076. † Non-income-producing security. ∆∆ Security is restricted with regard to public resale. The total fair value of this security and any other restricted securities (excluding 144A securities), if any, held at the close of the reporting period was $1,883,588, or 0.1% of netassets. d Affiliated company. See Note 1 to the financial statements regarding securities lending. The rate quoted in the security description is the annualized 7-day yield of the fund at the close of the reporting period. F Security is valued at fair value following procedures approved by the Trustees. Securities may be classified as Level 2 or Level 3 for ASC820 based on the securities’ valuation inputs. At the close of the reporting period, fair value pricing was also used for certain foreign securities in the portfolio (Note 1). i Security was pledged, or purchased with cash that was pledged, to the fund for collateral on certain derivative contracts (Note 1). L Affiliated company (Note 5). The rate quoted in the security description is the annualized 7-day yield of the fund at the close of the reporting period. P Security was pledged, or purchased with cash that was pledged, to the fund for collateral on certain derivative contracts. The rate quoted in the security description is the annualized 7-day yield of the fund at the close of the reporting period (Note 1). R Real Estate Investment Trust. S Security on loan, in part or in entirety, at the close of the reporting period (Note 1). UR At the reporting period end, 18,700 shares owned by the fund were not formally entered on the company’s shareholder register, due to local Putnam VT Growth and Income Fund7 restrictions on foreign ownership. While the fund has full title to these unregistered shares, these shares do not carry voting rights. At the close of the reporting period, the fund maintained liquid assets totaling $16,051 to cover certain derivatives contracts and the settlement of certain securities. Debt obligations are considered secured unless otherwise indicated. 144A after the name of an issuer represents securities exempt from registration under Rule 144A under the Securities Act of 1933, as amended. These securities may be resold in transactions exempt from registration, normally to qualified institutional buyers. The dates shown on debt obligations are the original maturity dates. FORWARD CURRENCY CONTRACTS at 12/31/14 (aggregate face value $23,347,973) Unrealized Contract Delivery Aggregate appreciation/ Counterparty Currency type date Value face value (depreciation) Credit Suisse International British Pound Sell 3/18/15 $14,581,022 $14,725,052 $144,030 Euro Sell 3/18/15 7,732,489 7,983,554 251,065 JPMorgan Chase Bank N.A. Euro Buy 3/18/15 623,345 639,367 (16,022) Total OTC TOTAL RETURN SWAP CONTRACTS OUTSTANDING at 12/31/14 Upfront Payments Total return Unrealized Swap counterparty/ premium Termination received (paid) by received by or appreciation/ Notional amount received (paid) date fund per annum paid by fund (depreciation) Bank of America N.A. shares 33,023 $— 5/6/15 (3 month USD-LIBOR-BBA BofA MLTR GOLD Index $358,364 plus 0.48%) Total $— 8 Putnam VT Growth and Income Fund ASC 820 establishes a three-level hierarchy for disclosure of fair value measurements. The valuation hierarchy is based upon the transparency of inputs to the valuation of the fund’s investments. The three levels are defined as follows: Level 1: Valuations based on quoted prices for identical securities in active markets. Level 2: Valuations based on quoted prices in markets that are not active or for which all significant inputs are observable, either directly or indirectly. Level 3: Valuations based on inputs that are unobservable and significant to the fair value measurement. The following is a summary of the inputs used to value the fund’s net assets as of the close of the reporting period: Valuation inputs Investments in securities: Level 1 Level 2 Level 3 Common stocks*: Consumer discretionary $107,604,742 $2,949,205 $1,883,588 Consumer staples 85,524,525 — — Energy 142,573,558 3,851,176 — Financials 275,341,462 5,142,573 — Health care 187,999,387 — — Industrials 123,208,558 18,460,474 — Information technology 120,447,524 4,268,487 — Materials 47,188,864 7,505,117 — Telecommunication services 20,794,635 — — Utilities 54,092,180 — — Total common stocks Convertible preferred stocks — 736,998 — Investment companies 8,976,486 — — U.S. government agency obligations — 162,107 — Short-term investments 43,217,683 55,005,795 — Totals by level Valuation inputs Other financial instruments: Level 1 Level 2 Level 3 Forward currency contracts $— $379,073 $— Total return swap contracts — 358,364 — Totals by level $— $— * Common stock classifications are presented at the sector level, which may differ from the fund’s portfolio presentation. During the reporting period, transfers within the fair value hierarchy, if any, (other than certain transfers involving non-U.S. equity securities as described in Note 1) did not represent, in the aggregate, more than 1% of the fund’s net assets measured as of the end of the period. At the start and close of the reporting period, Level 3 investments in securities represented less than 1% of the fund’s net assets and were not considered a significant portion of the fund’s portfolio. The accompanying notes are an integral part of these financial statements. Putnam VT Growth and Income Fund 9 Statement of assets and liabilities 12/31/14 Assets Investment in securities, at value, including $52,672,567 of securities on loan (Note 1): Unaffiliated issuers (identified cost $887,676,173) $1,219,340,628 Affiliated issuers (identified cost $97,594,496) (Notes 1 and 5) 97,594,496 Foreign currency (cost $12) (Note 1) 12 Dividends, interest and other receivables 2,199,050 Receivable for shares of the fund sold 63,057 Receivable for investments sold 68,059 Unrealized appreciation on forward currency contracts (Note 1) 395,095 Unrealized appreciation on OTC swap contracts (Note 1) 358,364 Total assets Liabilities Payable for shares of the fund repurchased 1,380,230 Payable for compensation of Manager (Note 2) 502,267 Payable for custodian fees (Note 2) 11,510 Payable for investor servicing fees (Note 2) 90,055 Payable for Trustee compensation and expenses (Note 2) 606,815 Payable for administrative services (Note 2) 8,535 Payable for distribution fees (Note 2) 49,160 Unrealized depreciation on forward currency contracts (Note 1) 16,022 Collateral on securities loaned, at value (Note 1) 54,476,813 Collateral on certain derivative contracts, at value (Note 1) 262,107 Other accrued expenses 164,171 Total liabilities Net assets Represented by Paid-in capital (Unlimited shares authorized) (Notes 1 and 4) $988,454,394 Undistributed net investment income (Note 1) 21,805,632 Accumulated net realized loss on investments and foreign currency transactions (Note 1) (80,210,720) Net unrealized appreciation of investments and assets and liabilities in foreign currencies 332,401,770 Total — Representing net assets applicable to capital shares outstanding Computation of net asset value Class IA Net assets $1,031,622,529 Number of shares outstanding 39,306,788 Net asset value, offering price and redemption price per share (net assets divided by number of shares outstanding) $26.25 Computation of net asset value Class IB Net assets $230,828,547 Number of shares outstanding 8,835,834 Net asset value, offering price and redemption price per share (net assets divided by number of shares outstanding) $26.12 The accompanying notes are an integral part of these financial statements. 10 Putnam VT Growth and Income Fund Statement of operations Year ended 12/31/14 Investment income Dividends (net of foreign tax of $402,060) $32,314,943 Interest (including interest income of $24,769 from investments in affiliated issuers) (Note 5) 25,439 Securities lending (Note 1) 414,092 Total investment income Expenses Compensation of Manager (Note 2) 6,118,185 Investor servicing fees (Note 2) 1,301,147 Custodian fees (Note 2) 41,954 Trustee compensation and expenses (Note 2) 50,531 Distribution fees (Note 2) 593,614 Administrative services (Note 2) 32,798 Other 340,579 Total expenses Expense reduction (Note 2) (70,983) Net expenses Net investment income Net realized gain on investments (Notes 1 and 3) 187,888,150 Net realized loss on swap contracts (Note 1) (946,522) Net realized gain on foreign currency transactions (Note 1) 306,509 Net unrealized appreciation of assets and liabilities in foreign currencies during the year 378,465 Net unrealized depreciation of investments and swap contracts during the year (76,305,517) Net gain on investments Net increase in net assets resulting from operations Statement of changes in net assets Year ended Year ended 12/31/14 12/31/13 Increase (decrease) in net assets Operations: Net investment income $24,346,649 $19,610,380 Net realized gain on investments and foreign currency transactions 187,248,137 205,771,360 Net unrealized appreciation (depreciation) of investments and assets and liabilities in foreign currencies (75,927,052) 161,175,188 Net increase in net assets resulting from operations Distributions to shareholders (Note 1): From ordinary income Net investment income Class IA (16,965,820) (19,821,129) Class IB (3,202,993) (3,883,781) Decrease from capital share transactions (Note 4) (193,368,990) (182,613,992) Total increase (decrease) in net assets Net assets: Beginning of year 1,340,321,145 1,160,083,119 End of year (including undistributed net investment income of $21,805,632 and $19,199,298, respectively) The accompanying notes are an integral part of these financial statements. Putnam VT Growth and Income Fund 11 Financial highlights (For a common share outstanding throughout the period) LESS INVESTMENT OPERATIONS: DISTRIBUTIONS: RATIOS AND SUPPLEMENTAL DATA: Period ended Net asset value, beginning of period Net investment income (loss) a Net realized and unrealized gain (loss) on investments Total from investment operations From net investment income Total distributions Net asset value, end of period Total return at net asset value (%) b,c Net assets, end of period (in thousands) Ratio of expenses to average net assets (%) b,d Ratio of net investment income (loss) to average net assets (%) Portfolio turnover (%) Class IA 12/31/14 .48 2.14 (.39) .61 1.92 38 12/31/13 .33 6.07 (.39) .62 1.59 50 12/31/12 .34 2.63 (.33) .63 2.03 34 12/31/11 .29 (.99) (.24) .63 1.81 44 12/31/10 .21 1.90 (.26) .63 1.45 45 Class IB 12/31/14 .41 2.13 (.33) .86 1.66 38 12/31/13 .28 6.04 (.34) .87 1.34 50 12/31/12 .30 2.61 (.28) .88 1.78 34 12/31/11 .25 (.98) (.20) .88 1.56 44 12/31/10 .18 1.87 (.22) .88 1.20 45 a Per share net investment income (loss) has been determined on the basis of the weighted average number of shares outstanding during the period. b The charges and expenses at the insurance company separate account level are not reflected. c Total return assumes dividend reinvestment. d Includes amounts paid through expense offset and/or brokerage/service arrangements, if any (Note 2). Also excludes acquired fund fees and expenses, if any. The accompanying notes are an integral part of these financial statements. 12Putnam VT Growth and Income Fund Notes to financial statements 12/31/14 Within the following Notes to financial statements, references to “State Street” represent State Street Bank and Trust Company, references to “the SEC” represent the Securities and Exchange Commission, references to “Putnam Management” represent Putnam Investment Management, LLC, the fund’s manager, an indirect wholly-owned subsidiary of Putnam Investments, LLC and references to “OTC”, if any, represent over-the-counter. Unless otherwise noted, the “reporting period” represents the period from January 1, 2014 through December 31, 2014. Putnam VT Growth and Income Fund (the fund) is a diversified series of Putnam Variable Trust (the Trust), a Massachusetts business trust registered under the Investment Company Act of 1940, as amended, as an open-end management investment company. The goal of the fund is to seek capital growth and current income. The fund invests mainly in common stocks of large U.S. companies, with a focus on value stocks that offer the potential for capital growth, current income, or both. Value stocks are issued by companies that Putnam Management believes are currently undervalued by the market. Putnam Management may consider, among other factors, a company’s valuation, financial strength, growth potential, competitive position in its industry, projected future earnings, cash flows and dividends when deciding whether to buy or sell investments. The fund offers class IA and class IB shares of beneficial interest. Class IA shares are offered at net asset value and are not subject to a distribution fee. Class IB shares are offered at net asset value and pay an ongoing distribution fee, which is identified in Note 2. In the normal course of business, the fund enters into contracts that may include agreements to indemnify another party under given circumstances. The fund’s maximum exposure under these arrangements is unknown as this would involve future claims that may be, but have not yet been, made against the fund. However, the fund’s management team expects the risk of material loss to be remote. Note 1 — Significant accounting policies The following is a summary of significant accounting policies consistently followed by the fund in the preparation of its financial statements. The preparation of financial statements is in conformity with accounting principles generally accepted in the United States of America and requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities in the financial statements and the reported amounts of increases and decreases in net assets from operations. Actual results could differ from those estimates. Subsequent events after the Statement of assets and liabilities date through the date that the financial statements were issued have been evaluated in the preparation of the financial statements. Investment income, realized and unrealized gains and losses and expenses of the fund are borne pro-rata based on the relative net assets of each class to the total net assets of the fund, except that each class bears expenses unique to that class (including the distribution fees applicable to such classes). Each class votes as a class only with respect to its own distribution plan or other matters on which a class vote is required by law or determined by the Trustees. If the fund were liquidated, shares of each class would receive their pro-rata share of the net assets of the fund. In addition, the Trustees declare separate dividends on each class of shares. Security valuation Portfolio securities and other investments are valued using policies and procedures adopted by the Board of Trustees. The Trustees have formed a Pricing Committee to oversee the implementation of these procedures and has delegated responsibility for valuing the fund’s assets in accordance with these procedures to Putnam Management. Putnam Management has established an internal Valuation Committee that is responsible for making fair value determinations, evaluating the effectiveness of the pricing policies of the fund and reporting to the Pricing Committee. 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, and are classified as Level 1 securities under Accounting Standards Codification 820 Fair Value Measurements and Disclosures (ASC 820). If no sales are reported, as in the case of some securities that are traded OTC, a security is valued at its last reported bid price and is generally categorized as a Level 2 security. Investments in open-end investment companies (excluding exchange traded funds), if any, which can be classified as Level 1 or Level 2 securities, are valued based on their net asset value. The net asset value of such investment companies equals the total value of their assets less their liabilities and divided by the number of their outstanding shares. Market quotations are not considered to be readily available for certain debt obligations and other investments; such investments are valued on the basis of valuations furnished by an independent pricing service approved by the Trustees or dealers selected by Putnam Management. Such services or dealers determine valuations for normal institutional-size trading units of such securities using methods based on market transactions for comparable securities and various relationships, generally recognized by institutional traders, between securities (which consider such factors as security prices, yields, maturities and ratings). These securities will generally be categorized as Level 2. Short-term securities with remaining maturities of 60 days or less may be valued at amortized cost, which approximates fair value and are classified as Level 2 securities. 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, currency valuations and comparisons to the valuation of American Depository Receipts, exchange-traded funds and futures contracts. These securities, which would generally be classified as Level 1 securities, will be transferred to Level 2 of the fair value hierarchy when they are valued at fair value. 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. At the close of the reporting period, fair value pricing was used for certain foreign securities in the portfolio. Securities quoted in foreign currencies, if any, are translated into U.S. dollars at the current exchange rate. To the extent a pricing service or dealer is unable to value a security or provides a valuation that Putnam Management does not believe accurately reflects the security’s fair value, the security will be valued at fair value by Putnam Management in accordance with policies and procedures approved by the Trustees. Certain investments, including certain restricted and illiquid securities and derivatives, are also valued at fair value following procedures approved by the Trustees. These valuations consider such factors as significant market or specific security events such as interest rate or credit quality changes, various relationships with other securities, discount rates, U.S. Treasury, U.S. swap and credit yields, index levels, convexity exposures, recovery rates, sales and other multiples and resale restrictions. These securities are classified as Level 2 or as Level 3 depending on the priority of the significant inputs. To assess the continuing appropriateness of fair valuations, the Valuation Committee reviews and affirms the reasonableness of such valuations on a regular basis after considering all relevant information that is reasonably available. 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 in a current sale and does not reflect an actual market price, which may be different by a material amount. Security transactions and related investment income Security transactions are recorded on the trade date (the date the order to buy or sell is executed). Gains or losses on securities sold are determined on the identified cost basis. Interest income, net of any applicable withholding taxes, is recorded on the accrual basis. Dividend income, net of any applicable withholding taxes, is recognized on the ex-dividend date except that certain dividends from foreign securities, if any, are recognized as soon as the fund is informed of the ex-dividend date. Non-cash dividends, if any, are recorded at the fair value of the securities received. Dividends representing a return of capital or capital gains, if any, are reflected as a reduction of cost and/or as a realized gain. All premiums/discounts are amortized/accreted on a yield-to-maturity basis. Foreign currency translation The accounting records of the fund are maintained in U.S. dollars. The fair value of foreign securities, currency holdings, and other assets and liabilities is recorded in the books and records of the fund after Putnam VT Growth and Income Fund 13 translation to U.S. dollars based on the exchange rates on that day. The cost of each security is determined using historical exchange rates. Income and withholding taxes are translated at prevailing exchange rates when earned or incurred. The fund does not isolate that portion of realized or unrealized gains or losses resulting from changes in the foreign exchange rate on investments from fluctuations arising from changes in the market prices of the securities. Such gains and losses are included with the net realized and unrealized gain or loss on investments. Net realized gains and losses on foreign currency transactions represent net realized exchange gains or losses on closed forward currency contracts, disposition of foreign currencies, currency gains and losses realized between the trade and settlement dates on securities transactions and the difference between the amount of investment income and foreign withholding taxes recorded on the fund’s books and the U.S. dollar equivalent amounts actually received or paid. Net unrealized appreciation and depreciation of assets and liabilities in foreign currencies arise from changes in the value of open forward currency contracts and assets and liabilities other than investments at the period end, resulting from changes in the exchange rate. Forward currency contracts The fund buys and sells 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 hedge foreign exchange risk. The U.S. dollar value of forward currency contracts is determined using current forward currency exchange rates supplied by a quotation service. The fair value of the contract will fluctuate with changes in currency exchange rates. The contract is marked to market daily and the change in fair value is recorded as an unrealized gain or loss. 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 when the contract matures or by delivery of the currency. 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. Total return swap contracts The fund entered into OTC total return swap contracts, which are arrangements to exchange a market linked return for a periodic payment, both based on a notional principal amount, to gain exposure to a basket of securities. To the extent that the total return of the security, index or other financial measure underlying the transaction exceeds or falls short of the offsetting interest rate obligation, the fund will receive a payment from or make a payment to the counterparty. OTC total return swap contracts are marked to market daily based upon quotations from an independent pricing service or market makers and the change, if any, is recorded as an unrealized gain or loss. Payments received or made are recorded as realized gains or losses. Certain OTC total return swap contracts may include extended effective dates. Payments related to these swap contracts are accrued based on the terms of the contract. The fund could be exposed to credit or market risk due to unfavorable changes in the fluctuation of interest rates or in the price of the underlying security or index, the possibility that there is no liquid market for these agreements or that the counterparty may default on its obligation to perform. The fund’s maximum risk of loss from counterparty risk is the fair value of the contract. This risk may be mitigated by having a master netting arrangement between the fund and the counterparty. Risk of loss may exceed amounts recognized on the Statement of assets and liabilities. OTC total return swap contracts outstanding, including their respective notional amounts at period end, if any, are listed after the fund’s portfolio. Master agreements The fund is a party to ISDA (International Swaps and Derivatives Association, Inc.) Master Agreements (Master Agreements) with certain counterparties that govern OTC derivative and foreign exchange contracts entered into from time to time. The Master Agreements may contain provisions regarding, among other things, the parties’ general obligations, representations, agreements, collateral requirements, events of default and early termination. With respect to certain counterparties, in accordance with the terms of the Master Agreements, collateral posted to the fund is held in a segregated account by the fund’s custodian and with respect to those amounts which can be sold or repledged, is presented in the fund’s portfolio. Collateral posted to the fund which cannot be sold or repledged totaled $415,674 at the close of the reporting period. Collateral pledged by the fund is segregated by the fund’s custodian and identified in the fund’s portfolio. Collateral can be in the form of cash or debt securities issued by the U.S. Government or related agencies or other securities as agreed to by the fund and the applicable counterparty. Collateral requirements are determined based on the fund’s net position with each counterparty. Termination events applicable to the fund may occur upon a decline in the fund’s net assets below a specified threshold over a certain period of time. Termination events applicable to counterparties may occur upon a decline in the counterparty’s long-term and short-term credit ratings below a specified level. In each case, upon occurrence, the other party may elect to terminate early and cause settlement of all derivative and foreign exchange contracts outstanding, including the payment of any losses and costs resulting from such early termination, as reasonably determined by the terminating party. Any decision by one or more of the fund’s counterparties to elect early termination could impact the fund’s future derivative activity. At the close of the reporting period, the fund had a net liability position of $16,022 on open derivative contracts subject to the Master Agreements. There was no collateral posted by the fund at period end for these agreements. Securities lending The fund may lend securities, through its agent, to qualified borrowers in order to earn additional income. The loans are collateralized by cash in an amount at least equal to the fair value of the securities loaned. The fair 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 agent; the fund will bear the risk of loss with respect to the investment of the cash collateral. Income from securities lending is included in investment income on the Statement of operations. Cash collateral is invested in Putnam Cash Collateral Pool, LLC, a limited liability company managed by an affiliate of Putnam Management. Investments in Putnam Cash Collateral Pool, LLC are valued at its closing net asset value each business day. There are no management fees charged to Putnam Cash Collateral Pool, LLC. At the close of the reporting period, the fund received cash collateral of $54,476,813 and the value of securities loaned amounted to $52,672,567. Interfund lending The fund, along with other Putnam funds, may participate in an interfund lending program pursuant to an exemptive order issued by the SEC. This program allows the fund to borrow from or lend to other Putnam funds that permit such transactions. Interfund lending transactions are subject to each fund’s investment policies and borrowing and lending limits. Interest earned or paid on the interfund lending transaction will be based on the average of certain current market rates. During the reporting period, the fund did not utilize the program. Lines of credit The fund participates, along with other Putnam funds, in a $392.5 million unsecured committed line of credit and a $235.5 million unsecured uncommitted line of credit, both provided by State Street. Borrowings may be made for temporary or emergency purposes, including the funding of shareholder redemption requests and trade settlements. Interest is charged to the fund based on the fund’s borrowing at a rate equal to the Federal Funds rate plus 1.25% for the committed line of credit and the Federal Funds rate plus 1.30% for the uncommitted line of credit. A closing fee equal to 0.04% of the committed line of credit and 0.04% of the uncommitted line of credit has been paid by the participating funds. In addition, a commitment fee of 0.11% per annum on any unutilized portion of the committed line of credit is allocated to the participating funds based on their relative net assets and paid quarterly. During the reporting period, the fund had no borrowings against these arrangements. Federal taxes It is the policy of the fund to distribute all of its taxable income within the prescribed time period and otherwise comply with the provisions of the Internal Revenue Code of 1986, as amended (the Code), applicable to regulated investment companies. The fund is subject to the provisions of Accounting Standards Codification 740 Income Taxes (ASC 740). ASC 740 sets forth a minimum threshold for financial statement recognition of the benefit of a tax position taken or expected to be taken in a tax return. The fund did not have a liability to record for any unrecognized tax benefits in the accompanying financial statements. No provision has been made for federal taxes on income, capital gains or unrealized appreciation on securities held nor for excise tax on income and capital gains. Each of the fund’s federal tax returns for the prior three fiscal years remains subject to examination by the Internal Revenue Service. The fund may also be subject to taxes imposed by governments of countries in which it invests. Such taxes are generally based on either income or gains earned or repatriated. The fund accrues and applies such taxes to net investment income, 14 Putnam VT Growth and Income Fund net realized gains and net unrealized gains as income and/or capital gains are earned. In some cases, the fund may be entitled to reclaim all or a portion of such taxes, and such reclaim amounts, if any, are reflected as an asset on the fund’s books. In many cases, however, the fund may not receive such amounts for an extended period of time, depending on the country of investment. At December 31, 2014 the fund had a capital loss carryover of $69,828,874 available to the extent allowed by the Code to offset future net capital gain, if any. The amounts of the carryovers and the expiration dates are: Loss carryover Short-term Long-term Total Expiration $69,828,874 N/A $69,828,874 12/31/17 Under the Regulated Investment Company Modernization Act of 2010, the fund will be permitted to carry forward capital losses incurred in taxable years beginning after December 22, 2010 for an unlimited period. However, any losses incurred will be required to be utilized prior to the losses incurred in pre-enactment tax years. As a result of this ordering rule, pre-enactment capital loss carryforwards may be more likely to expire unused. Additionally, post-enactment capital losses that are carried forward will retain their character as either short-term or long-term capital losses rather than being considered all short-term as under previous law. Distributions to shareholders Distributions to shareholders from net investment income are recorded by the fund on the ex-dividend date. Distributions from capital gains, if any, are recorded on the ex-dividend date and paid at least annually. The amount and character of income and gains to be distributed are determined in accordance with income tax regulations, which may differ from generally accepted accounting principles. These differences include temporary and/or permanent differences from losses on wash sale transactions, from foreign currency gains and losses, from income on swap contracts and from partnership income. Reclassifications are made to the fund’s capital accounts to reflect income and gains available for distribution (or available capital loss carryovers) under income tax regulations. At the close of the reporting period, the fund reclassified $1,571,502 to decrease undistributed net investment income, $1,607 to decrease paid-in-capital and $1,573,109 to decrease accumulated net realized loss. The tax basis components of distributable earnings and the federal tax cost as of the close of the reporting period were as follows: Unrealized appreciation $355,578,885 Unrealized depreciation (34,267,060) Net unrealized appreciation 321,311,825 Undistributed ordinary income 22,543,029 Capital loss carryforward (69,828,874) Cost for federal income tax purposes $995,623,299 Expenses of the Trust Expenses directly charged or attributable to any fund will be paid from the assets of that fund. Generally, expenses of the Trust will be allocated among and charged to the assets of each fund on a basis that the Trustees deem fair and equitable, which may be based on the relative assets of each fund or the nature of the services performed and relative applicability to each fund. Beneficial interest At the close of the reporting period, insurance companies or their separate accounts were record owners of all but a de minimis number of the shares of the fund. Approximately 40.9% of the fund is owned by accounts of one insurance company. Note 2 — Management fee, administrative services and other transactions The fund pays Putnam Management a management fee (based on the fund’s average net assets and computed and paid monthly) at annual rates that may vary based on the average of the aggregate net assets of most open-end funds, as defined in the fund’s management contract, sponsored by Putnam Management. Such annual rates may vary as follows: 0.630% of the first $5 billion, 0.580% of the next $5 billion, 0.530% of the next $10 billion, 0.480% of the next $10 billion, 0.430% of the next $50 billion, 0.410% of the next $50 billion, 0.400% of the next $100 billion and 0.395% of any excess thereafter. The fund’s shareholders approved the fund’s current management contract with Putnam Management effective February 27, 2014. Shareholders were asked to approve the fund’s management contract following the death on October 8, 2013 of The Honourable Paul G. Desmarais, who had controlled directly and indirectly a majority of the voting shares of Power Corporation of Canada, the ultimate parent company of Putnam Management. The substantive terms of the management contract, including terms relating to fees, are identical to the terms of the fund’s previous management contract and reflect the rates provided in the table above. Putnam Management has contractually agreed, through June 30, 2015, to waive fees or reimburse the fund’s expenses to the extent necessary to limit the cumulative expenses of the fund, exclusive of brokerage, interest, taxes, investment-related expenses, extraordinary expenses, acquired fund fees and expenses and payments under the fund’s investor servicing contract, investment management contract and distribution plans, on a fiscal year-to-date basis to an annual rate of 0.20% of the fund’s average net assets over such fiscal year-to-date period. During the reporting period, the fund’s expenses were not reduced as a result of this limit. Putnam Investments Limited (PIL), an affiliate of Putnam Management, is authorized by the Trustees to manage a separate portion of the assets of the fund as determined by Putnam Management from time to time. Putnam Management pays a quarterly sub-management fee to PIL for its services at an annual rate of 0.35% of the average net assets of the portion of the fund managed by PIL. The fund reimburses Putnam Management an allocated amount for the compensation and related expenses of certain officers of the fund and their staff who provide administrative services to the fund. The aggregate amount of all such reimbursements is determined annually by the Trustees. Custodial functions for the fund’s assets are provided by State Street. Custody fees are based on the fund’s asset level, the number of its security holdings and transaction volumes. Putnam Investor Services, Inc., an affiliate of Putnam Management, provides investor servicing agent functions to the fund. Putnam Investor Services, Inc. was paid a monthly fee for investor servicing at an annual rate of 0.10% of the fund’s average net assets. During the reporting period, the expenses for each class of shares related to investor servicing fees were as follows: Class IA $1,063,693 Class IB 237,454 Total $1,301,147 The fund has entered into expense offset arrangements with Putnam Investor Services, Inc. and State Street whereby Putnam Investor Services, Inc.’s and State Street’s fees are reduced by credits allowed on cash balances. The fund also reduced expenses through brokerage/service arrangements. For the reporting period, the fund’s expenses were not reduced under the expense offset arrangements and were reduced by $70,983 under the brokerage/service arrangements. Each Independent Trustee of the fund receives an annual Trustee fee, of which $734, as a quarterly retainer, has been allocated to the fund, and an additional fee for each Trustees meeting attended. Trustees also are reimbursed for expenses they incur relating to their services as Trustees. The fund has adopted a Trustee Fee Deferral Plan (the Deferral Plan) which allows the Trustees to defer the receipt of all or a portion of Trustees fees payable on or after July 1, 1995. The deferred fees remain invested in certain Putnam funds until distribution in accordance with the Deferral Plan. The fund has adopted an unfunded noncontributory defined benefit pension plan (the Pension Plan) covering all Trustees of the fund who have served as a Trustee for at least five years and were first elected prior to 2004. Benefits under the Pension Plan are equal to 50% of the Trustee’s average annual attendance and retainer fees for the three years ended December 31, 2005. The retirement benefit is payable during a Trustee’s lifetime, beginning the year following retirement, for the number of years of service through December 31, 2006. Pension expense for the fund is included in Trustee compensation and expenses in the Statement of operations. Accrued pension liability is included in Payable for Trustee compensation and expenses in the Statement of assets and liabilities. The Trustees have terminated the Pension Plan with respect to any Trustee first elected after 2003. The fund has adopted a distribution plan (the Plan) with respect to its class IB shares pursuant to Rule 12b-1 under the Investment Company Act of 1940. The purpose of the Plan is to compensate Putnam Retail Management Limited Putnam VT Growth and Income Fund15 Partnership, an indirect wholly-owned subsidiary of Putnam Investments, LLC, for services provided and expenses incurred in distributing shares of the fund. The Plan provides for payment by the fund to Putnam Retail Management Limited Partnership at an annual rate of up to 0.35% of the average net assets attributable to the fund’s class IB shares. The Trustees have approved payment by the fund at an annual rate of 0.25% of the average net assets attributable to the fund’s class IB shares. During the reporting period, the class specific expenses related to distribution fees were as follows: Class IB $593,614 Note 3 — Purchases and sales of securities During the reporting period, cost of purchases and proceeds from sales, excluding short-term investments were as follows: Cost of purchases Proceeds from sales Investments in securities (Long-term) $485,659,355 $686,425,835 U.S. government securities (Long-term) — — Total Note 4 — Capital shares At the close of the reporting period, there were an unlimited number of shares of beneficial interest authorized. Subscriptions and redemptions are presented at the omnibus level. Transactions in capital shares were as follows: Class IA shares Class IB shares Year ended 12/31/14 Year ended 12/31/13 Year ended 12/31/14 Year ended 12/31/13 Shares Amount Shares Amount Shares Amount Shares Amount Shares sold 124,007 $3,080,355 248,143 $5,238,879 417,278 $10,357,783 370,470 $7,743,183 Shares issued in connection with reinvestment of distributions 703,392 16,965,820 1,007,683 19,821,129 133,181 3,202,993 197,950 3,883,781 827,399 20,046,175 1,255,826 25,060,008 550,459 13,560,776 568,420 11,626,964 Shares repurchased (7,256,331) (181,223,357) (8,202,173) (172,565,869) (1,835,178) (45,752,584) (2,233,625) (46,735,095) Net decrease Note 5 — Affiliated transactions Transactions during the reporting period with Putnam Short Term Investment Fund, which is under common ownership and control, were as follows: Fair value at the beginning of Fair value at the end of the Name of affiliate the reporting period Purchase cost Sale proceeds Investment income reporting period Putnam Short Term Investment Fund * $35,202,363 $264,525,182 $256,609,862 $24,769 $43,117,683 Total * Management fees charged to Putnam Short Term Investment Fund have been waived by Putnam Management. Note 6 — Market, credit and other risks In the normal course of business, the fund trades financial instruments and enters into financial transactions where risk of potential loss exists due to changes in the market (market risk) or failure of the contracting party to the transaction to perform (credit risk). The fund may be exposed to additional credit risk that an institution or other entity with which the fund has unsettled or open transactions will default. Investments in foreign securities involve certain risks, including those related to economic instability, unfavorable political developments, and currency fluctuations. Note 7 — Summary of derivative activity The volume of activity for the reporting period for any derivative type that was held during the period is listed below and was as follows based on an average of the holdings at the end of each fiscal quarter: Forward currency contracts (contract amount) $5,300,000 OTC total return swap contracts (notional) $2,400,000 Warrants (number of warrants) 41,000 The following is a summary of the fair value of derivative instruments as of the close of the reporting period: Fair value of derivative instruments as of the close of the reporting period Asset derivatives Liability derivatives Derivatives not accounted for as hedging instruments Statement of assets and Statement of assets and under ASC 815 liabilities location Fair value liabilities location Fair value Foreign exchange contracts Receivables $395,095 Payables $16,022 Equity contracts Receivables 358,364 Payables — Total 16 Putnam VT Growth and Income Fund The following is a summary of realized and change in unrealized gains or losses of derivative instruments on the Statement of operations for the reporting period (see Note 1): Amount of realized gain or (loss) on derivatives recognized in net gain or (loss) on investments Derivatives not accounted for as hedging instruments Forward currency under ASC 815 Warrants contracts Swaps Total Foreign exchange contracts $— $320,828 $— $320,828 Equity contracts (789,433) — (946,522) $(1,735,955) Total Change in unrealized appreciation or (depreciation) on derivatives recognized in net gain or (loss) on investments Derivatives not accounted for as Forward currency hedging instruments under ASC 815 Warrants contracts Swaps Total Foreign exchange contracts $— $379,073 $— $379,073 Equity contracts 828,505 — 663,178 $1,491,683 Total Note 8 — Offsetting of financial and derivative assets and liabilities The following table summarizes any derivatives, repurchase agreements and reverse repurchase agreements, at the end of the reporting period, that are subject to an enforceable master netting agreement or similar agreement. For securities lending transactions or borrowing transactions associated with securities sold short, if any, see Note 1. For financial reporting purposes, the fund does not offset financial assets and financial liabilities that are subject to the master netting agreements in the Statement of assets and liabilities. Bank of America N.A. Credit Suisse International JPMorgan Chase Bank N.A. Total Assets: OTC Total return swap contracts* # $358,364 $— $— $358,364 Forward currency contracts # — 395,095 — 395,095 Total Assets $— Liabilities: OTC Total return swap contracts* # — Forward currency contracts # — — 16,022 16,022 Total Liabilities $— $— Total Financial and Derivative Net Assets Total collateral received (pledged)† ## $262,107 $395,095 $— Net amount $96,257 $— $(16,022) *Excludes premiums, if any. Included in unrealized appreciation and depreciation on OTC swap contracts on the Statement of assets and liabilities. †Additional collateral may be required from certain brokers based on individual agreements. # Covered by master netting agreement (Note 1). ## Any over-collateralization of total financial and derivative net assets is not shown. Collateral may include amounts related to unsettled agreements. Putnam VT Growth and Income Fund 17 Federal tax information (Unaudited) The fund designated 81.95% of ordinary income distributions as qualifying for the dividends received deduction for corporations. Shareholder meeting results (Unaudited) February 27, 2014 special meeting At the meeting, each of the nominees for Trustees was elected, with all funds of the Trust voting together as a single class, as follows: Votes for Votes withheld Liaquat Ahamed 545,333,593 24,865,496 Ravi Akhoury 545,906,178 24,292,911 Barbara M. Baumann 549,255,821 20,943,268 Jameson A. Baxter 548,878,213 21,320,877 Charles B. Curtis 548,266,326 21,932,764 Robert J. Darretta 548,954,413 21,244,676 Katinka Domotorffy 547,720,210 22,478,879 John A. Hill 548,926,132 21,272,957 Paul L. Joskow 548,318,739 21,880,351 Kenneth R. Leibler 549,128,017 21,071,073 Robert E. Patterson 548,989,554 21,209,535 George Putnam, III 548,805,405 21,393,685 Robert L. Reynolds 549,170,754 21,028,335 W. Thomas Stephens 548,523,544 21,675,546 A proposal to approve a new management contract between the fund and Putnam Management was approved as follows: Votes for Votes against Abstentions Broker non-votes 50,807,219 1,610,049 4,192,708 — A proposal to adopt an Amended and Restated Declaration of Trust was approved, with all funds of the Trust voting together as a single class, as follows: Votes for Votes against Abstentions Broker non-votes 507,595,281 19,452,349 43,151,459 — All tabulations are rounded to the nearest whole number. 18Putnam VT Growth and Income Fund About the Trustees 19 Putnam VT Growth and Income Fund *Mr. Reynolds is an “interested person” (as defined in the Investment Company Act of 1940) of the fund and Putnam Investments. He is President and Chief Executive Officer of Putnam Investments, as well as the President of your fund and each of the other Putnam funds. The address of each Trustee is One Post Office Square, Boston, MA 02109. As of December 31, 2014, there were 116 Putnam funds. All Trustees serve as Trustees of all Putnam funds. Each Trustee serves for an indefinite term, until his or her resignation, retirement at age 75, removal, or death. Officers In addition to Robert L. Reynolds, the other officers of the fund are shown below: Jonathan S. Horwitz (Born 1955) Michael J. Higgins (Born 1976) James P. Pappas (Born 1953) Executive Vice President, Principal Executive Vice President, Treasurer, and Clerk Vice President Officer, and Compliance Liaison Since 2010 Since 2004 Since 2004 Manager of Finance, Dunkin’ Brands Director of Trustee Relations, (2008–2010); Senior Financial Analyst, Old Putnam Investments and Steven D. Krichmar (Born 1958) Mutual Asset Management (2007–2008); PutnamManagement Vice President and Principal Financial Officer Senior Financial Analyst, Putnam Investments Since 2002 (1999–2007) Mark C. Trenchard (Born 1962) Chief of Operations, Putnam Investments and Vice President and BSA Compliance Officer Putnam Management Janet C. Smith (Born 1965) Since 2002 Vice President, Principal Accounting Officer, Director of Operational Compliance, Robert T. Burns (Born 1961) and Assistant Treasurer Putnam Investments and Vice President and Chief Legal Officer Since 2007 Putnam Retail Management Since 2011 Director of Fund Administration Services, General Counsel, Putnam Investments, Putnam Investments and Nancy E. Florek (Born 1957) Putnam Management, and PutnamManagement Vice President, Director of Proxy Voting and PutnamRetailManagement Corporate Governance, Assistant Clerk, and Susan G. Malloy (Born 1957) Associate Treasurer Robert R. Leveille (Born 1969) Vice President and Assistant Treasurer Since 2000 Vice President and Chief Compliance Officer Since 2007 Since 2007 Director of Accounting & Control Chief Compliance Officer, Services, Putnam Investments and PutnamInvestments, Putnam Management, PutnamManagement and Putnam Retail Management The principal occupations of the officers for the past five years have been with the employers as shown above, although in some cases they have held different positions with such employers. The address of each officer is One Post Office Square, Boston, MA 02109. Putnam VT Growth and Income Fund 20 Other important information Proxy voting Putnam is committed to managing our mutual funds in the best interests of our shareholders. The Putnam funds’ proxy voting guidelines and procedures, as well as information regarding how your fund voted proxies relating to portfolio securities during the 12-month period ended June30, 2014, are available in the Individual Investors section of putnam.com and on the Securities and Exchange Commission’s (SEC) website, www.sec.gov. If you have questions about finding forms on the SEC’s website, you may call the SEC at 1-800-SEC-0330. You may also obtain the Putnam funds’ proxy voting guidelines and procedures at no charge by calling Putnam’s Shareholder Services at 1-800-225-1581. Fund portfolio holdings Each Putnam VT fund will file a complete schedule of its portfolio holdings with the SEC for the first and third quarters of each fiscal year on Form N-Q. Shareholders may obtain the fund’s Form N-Q on the SEC’s website at www.sec.gov. In addition, the fund’s Form N-Q may be reviewed and copied at the SEC’s Public Reference Room in Washington, D.C. You may call the SEC at 1-800-SEC-0330 for information about the SEC’s website or the operation of the Public Reference Room. Fund information Investment Manager Investor Servicing Agent Trustees Putnam Investment Management, LLC Putnam Investor Services, Inc. Jameson A. Baxter, Chair One Post Office Square Mailing address: Liaquat Ahamed Boston, MA 02109 P.O. Box 8383 Ravi Akhoury Boston, MA 02266-8383 Barbara M. Baumann Investment Sub-Manager 1-800-225-1581 Charles B. Curtis Putnam Investments Limited Robert J. Darretta 57–59 St James’s Street Custodian Katinka Domotorffy London, England SW1A 1LD State Street Bank and Trust Company John A. Hill Paul L. Joskow Marketing Services Legal Counsel Kenneth R. Leibler Putnam Retail Management Ropes & Gray LLP Robert E. Patterson One Post Office Square George Putnam, III Boston, MA 02109 Independent Registered Robert L. Reynolds Public Accounting Firm W. Thomas Stephens PricewaterhouseCoopers LLP The fund’s Statement of Additional Information contains additional information about the fund’s Trustees and is available without charge upon request by calling 1-800-225-1581. Putnam VT Growth and Income Fund 21 This report has been prepared for the shareholders H509 of Putnam VT Growth and Income Fund. VTAN/15 Item 2. Code of Ethics: (a) The fund’s principal executive, financial and accounting officers are employees of Putnam Investment Management, LLC, the Fund’s investment manager. As such they are subject to a comprehensive Code of Ethics adopted and administered by Putnam Investments which is designed to protect the interests of the firm and its clients. The Fund has adopted a Code of Ethics which incorporates the Code of Ethics of Putnam Investments with respect to all of its officers and Trustees who are employees of Putnam Investment Management, LLC. For this reason, the Fund has not adopted a separate code of ethics governing its principal executive, financial and accounting officers. (c) In July 2013, the Code of Ethics of Putnam Investment Management, LLC was amended. The changes to the Code of Ethics were as follows: (i) eliminating the requirement for employees to hold their shares of Putnam mutual funds for specified periods of time, (ii) removing the requirement to preclear transactions in certain kinds of exchange-traded funds and exchange-traded notes, although reporting of all such instruments remains required; (iii) eliminating the excessive trading rule related to employee transactions in securities requiring preclearance under the Code; (iv) adding provisions related to monitoring of employee trading; (v) changing from a set number of shares to a set dollar value of stock of mid- and large-cap companies on the Restricted List that can be purchased or sold; (vi) adding a requirement starting in March 2014 for employees to generally use certain approved brokers that provide Putnam with an electronic feed of transactions and statements for their personal brokerage accounts; and (vii) certain other changes. Item 3. Audit Committee Financial Expert: The Funds’ Audit and Compliance Committee is comprised solely of Trustees who are “independent” (as such term has been defined by the Securities and Exchange Commission (“SEC”) in regulations implementing Section 407 of the Sarbanes-Oxley Act (the “Regulations”)). The Trustees believe that each of the members of the Audit and Compliance Committee also possess a combination of knowledge and experience with respect to financial accounting matters, as well as other attributes, that qualify them for service on the Committee. In addition, the Trustees have determined that each of Mr. Leibler, Mr. Hill, Mr. Darretta, and Ms. Baumann qualifies as an “audit committee financial expert” (as such term has been defined by the Regulations) based on their review of his or her pertinent experience and education. The SEC has stated, and the funds’ amended and restated agreement and Declaration of Trust provides, that the designation or identification of a person as an audit committee financial expert pursuant to this Item 3 of Form N-CSR does not impose on such person any duties, obligations or liability that are greater than the duties, obligations and liability imposed on such person as a member of the Audit and Compliance Committee and the Board of Trustees in the absence of such designation or identification. Item 4. Principal Accountant Fees and Services: The following table presents fees billed in each of the last two fiscal years for services rendered to the fund by the fund’s independent auditor: Fiscal year ended Audit Fees Audit-Related Fees Tax Fees All Other Fees December 31, 2014 $75,491 $ — $5,606 $ — December 31, 2013 $77,326 $ — $3,480 $ — For the fiscal years ended December 31, 2014 and December 31, 2013, the fund’s independent auditor billed aggregate non-audit fees in the amounts of $567,671 and $153,480 respectively, to the fund, Putnam Management and any entity controlling, controlled by or under common control with Putnam Management that provides ongoing services to the fund. Audit Fees represent fees billed for the fund’s last two fiscal years relating to the audit and review of the financial statements included in annual reports and registration statements, and other services that are normally provided in connection with statutory and regulatory filings or engagements. Audit-Related Fees represent fees billed in the fund’s last two fiscal years for services traditionally performed by the fund’s auditor, including accounting consultation for proposed transactions or concerning financial accounting and reporting standards and other audit or attest services not required by statute or regulation. Tax Fees represent fees billed in the fund’s last two fiscal years for tax compliance, tax planning and tax advice services. Tax planning and tax advice services include assistance with tax audits, employee benefit plans and requests for rulings or technical advice from taxing authorities. Pre-Approval Policies of the Audit and Compliance Committee. The Audit and Compliance Committee of the Putnam funds has determined that, as a matter of policy, all work performed for the funds by the funds’ independent auditors will be pre-approved by the Committee itself and thus will generally not be subject to pre-approval procedures. The Audit and Compliance Committee also has adopted a policy to pre-approve the engagement by Putnam Management and certain of its affiliates of the funds’ independent auditors, even in circumstances where pre-approval is not required by applicable law. Any such requests by Putnam Management or certain of its affiliates are typically submitted in writing to the Committee and explain, among other things, the nature of the proposed engagement, the estimated fees, and why this work should be performed by that particular audit firm as opposed to another one. In reviewing such requests, the Committee considers, among other things, whether the provision of such services by the audit firm are compatible with the independence of the audit firm. The following table presents fees billed by the fund’s independent auditor for services required to be approved pursuant to paragraph (c)(7)(ii) of Rule 2-01 of Regulation S-X. Fiscal year ended Audit-Related Fees Tax Fees All Other Fees Total Non-Audit

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- Dreyfus BASIC Money Market Fund, Inc. (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) Bennett A. MacDougall, Esq. 200 Park Avenue New York, New York 10166 (Name and address of agent for service) Registrant's telephone number, including area code: (212) 922-6400 Date of fiscal year end: 2/28(9) Date of reporting period: 02/28/17 FORM N-CSR Item 1. Reports to Stockholders. Dreyfus BASIC Money Market Fund, Inc. ANNUAL REPORT February 28, 2017 Save time. Save paper. View your next shareholder report online as soon as it’s available. Log into www.dreyfus.com and sign up for Dreyfus eCommunications. It’s simple and only takes a few minutes. The views expressed in this report reflect those of the portfolio manager(s) only through the end of the period covered and do not necessarily represent the views of Dreyfus or any other person in the Dreyfus organization. Any such views are subject to change at any time based upon market or other conditions and Dreyfus disclaims any responsibility to update such views. These views may not be relied on as investment advice and, because investment decisions for a Dreyfus fund are based on numerous factors, may not be relied on as an indication of trading intent on behalf of any Dreyfus fund. Not FDIC-Insured • Not Bank-Guaranteed • May Lose Value Contents THE FUN D A Letter from the CEO of Dreyfus 2 Discussion of Fund Performance 3 Understanding Your Fund’s Expenses 5 Comparing Your Fund’s Expenses With Those of Other Funds 5 Statement of Investments 6 Statement of Assets and Liabilities 9 Statement of Operations 10 Statement of Changes in Net Assets 11 Financial Highlights 12 Notes to Financial Statements 13 Report of Independent Registered Public Accounting Firm 19 Important Tax Information 20 Board Members Information 21 Officers of the Fund 23 FOR MORE INFORMATION Back Cover Dreyfus BASIC Money Market Fund, Inc. The Fund A LETTER FROM THE CEO OF DREYFUS Dear Shareholder: We are pleased to present this annual report for Dreyfus BASIC Money Market Fund, Inc., covering the 12-month period from March 1, 2016 through February 28, 2017. For information about how the fund performed during the reporting period, as well as general market perspectives, we provide a Discussion of Fund Performance on the pages that follow. Stocks advanced solidly over the past year while bonds produced mixed returns in response to various economic and political developments. After declining sharply in the months prior to the start of the reporting period, equities began a sustained rebound when U.S. monetary policymakers delayed additional rate hikes, other central banks eased their monetary policies, and commodity prices recovered from previously depressed levels. After a bout of volatility in June stemming from the United Kingdom’s referendum to leave the European Union, stocks generally continued to climb over the summer. Stock prices moderated in advance of U.S. elections, but markets rallied to a series of new highs over the remainder of the reporting period in anticipation of new U.S. fiscal, regulatory, and tax policies. In the bond market, yields of high-quality government bonds moved lower over the first half of the reporting period due to robust investor demand for current income, but yields subsequently surged higher amid expectations of rising interest rates. In contrast, lower rated corporate-backed bonds generally fared well in anticipation of a more business-friendly political climate. U.S. political developments and ongoing global economic headwinds suggest that volatility may persist in the financial markets. Some asset classes and industry groups seem likely to benefit from a changing economic and geopolitical landscape, while others probably will face challenges. Consequently, selectivity seems likely to be an important determinant of investment success in the months ahead. As always, we encourage you to discuss the implications of our observations with your financial advisor. Thank you for your continued confidence and support. Sincerely, Mark D. Santero Chief Executive Officer The Dreyfus Corporation March 15, 2017 2 DISCUSSION OF FUND PERFORMANCE For the period from March 1, 2016 through February 28, 2017, as provided by Bernard W. Kiernan, Jr., Portfolio Manager Market and Fund Performance Overview For the 12-month period ended February 28, 2017, Dreyfus BASIC Money Market Fund, Inc. produced a yield of 0.24%. Taking into account the effects of compounding, the fund produced an effective yield of 0.24%. 1 Yields of money market instruments climbed modestly over the reporting period when the Federal Reserve Board (the “Fed”) raised short-term interest rates and investors looked forward to higher levels of inflation and economic growth. The Fund’s Investment Approach The fund seeks as high a level of current income as is consistent with the preservation of capital and the maintenance of liquidity. To pursue this goal, the fund invests in a diversified portfolio of high-quality, short-term debt securities, including U.S. government securities, bank obligations, U.S. dollar-denominated foreign and domestic commercial paper, repurchase agreements, asset-backed securities and U.S. dollar-denominated obligations issued or guaranteed by foreign governments. Normally, the fund invests at least 25% of its net assets in domestic or foreign bank obligations. When managing the fund, we closely monitor the outlook for economic growth and inflation, follow overseas developments, and consider the posture of the Fed in our decisions as to how to structure the fund. Based upon our economic outlook, we actively manage the fund’s average maturity in looking for opportunities that may present themselves in light of possible changes in interest rates. U.S. Economy Continued to Expand Slowly The reporting period began near the start of a recovery from several troubling economic developments, including an economic slowdown in China and plunging global commodity prices. In March 2016, U.S. manufacturing activity expanded for the first time in six months, but the unemployment rate moved higher to 5.0% despite 186,000 new jobs. April saw 144,000 new jobs and an unchanged unemployment rate. Manufacturing and utility output advanced strongly, and inflation accelerated as energy prices recovered. Economic data were mixed in May, when only 24,000 new jobs were created while the unemployment rate declined to 4.7% as workers left the labor force. Investors remained cautious in June due to uncertainty surrounding a referendum in the United Kingdom to leave the European Union. Meanwhile, a robust 271,000 jobs were created during the month, and the unemployment rate increased to 4.9%. Still, U.S. GDP grew at only a 1.4% annualized rate over the second quarter. Robust job growth continued in July with the addition of 252,000 positions and an unchanged unemployment rate. The manufacturing and services sectors continued to grow, but at slower rates. August brought a decline in new job creation to 176,000 positions and a contraction in manufacturing activity. In September, 249,000 new jobs were added even as the unemployment rate climbed to 5.0%. U.S. GDP grew at a relatively robust 3.5% annualized rate over the third quarter. 3 DISCUSSION OF FUND PERFORMANCE (continued) Despite uncertainty ahead of the U.S. election, economic data generally remained positive in October. The unemployment rate slid to 4.9% as an estimated 124,000 jobs were created and quarterly corporate earnings exceeded most analysts’ expectations. November saw a post-election rally in most financial markets when investors looked forward to more stimulative fiscal, tax, and regulatory policies from a new presidential administration. Consumer confidence rose to its highest level since July 2007, and the unemployment rate slid to 4.6% while 164,000 new jobs were created. The Fed implemented a long-awaited rate hike in December, raising the overnight federal funds rate by 0.25 percentage points to between 0.50% and 0.75%. The unemployment rate ticked up to end the year at 4.7%, and 155,000 jobs were created during the month. U.S. GDP growth moderated to an estimated 1.9% annualized rate during the fourth quarter as declining export activity partly offset gains in consumer spending. In January 2017, the economy added 238,000 new jobs, but the unemployment rate moved higher to 4.8%. Meanwhile, both manufacturing and non-manufacturing activity continued to expand. February saw the addition of 235,000 jobs, a reduction in first-time claims for unemployment benefits, and a decrease in the unemployment rate to 4.7%. Corporate earnings reports generally continued to exceed analysts’ expectations, manufacturing activity expanded, and consumer and business confidence remained high. More Rate Hikes Expected As of the reporting period’s end, investors have continued to respond positively to expectations that business-friendly government policies will fuel greater economic growth. Therefore, most analysts expect the Fed to raise short-term rates further in 2017. Indeed, just two weeks after the end of the reporting period, the Fed implemented its second rate hike in three months, raising the federal funds rate another 0.25 percentage points to between 0.75% and 1.00%. In the rising interest-rate environment, we have maintained the fund’s weighted average maturity in a range that is modestly shorter than industry averages. This strategy is intended to capture higher yields as they become available. As always, we have retained our longstanding focus on quality and liquidity. March 15, 2017 An investment in the fund is not insured or guaranteed by the Federal Deposit Insurance Corporation (FDIC) or any other government agency. Although the fund seeks to preserve the value of your investment at $1.00 per share, it is possible to lose money by investing in the fund. Short-term corporate, asset-backed and municipal securities holdings (as applicable), while rated in the highest rating category by one or more Nationally Recognized Statistical Ratings Organizations (NRSROs) (or unrated, if deemed of comparable quality by the investment adviser), involve credit and liquidity risks and risk of principal loss. 1 Effective yield is based upon dividends declared daily and reinvested monthly. Past performance is no guarantee of future results. The Dreyfus Corporation has contractually agreed to waive receipt of its fees and/or assume the expenses of the fund so that total annual fund operating expenses do not exceed 0.45%. The Dreyfus Corporation may terminate the agreement upon at least 90 days’ prior notice to investors, but has committed not to do so until at least July 1, 2017. Had these expenses not been absorbed, fund yields would have been lower, and in some cases, 7-day yields would have been negative. 4 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. If your account balance is less than $50,000, your account may be subject to exchange fees, account closeout fees, and wire and Dreyfus TeleTransfer redemption fees each in the amount of $5.00, as well as a checkwriting fee of $2.00. None of these fees are 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 Dreyfus BASIC Money Market Fund, Inc. from September 1, 2016 to February 28, 2017. It also shows how much a $1,000 investment would be worth at the close of the period, assuming actual returns and expenses. Expenses and Value of a $1,000 Investment assuming actual returns for the six months ended February 28, 2017 Expenses paid per $1,000 † $ Ending value (after expenses) $ 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 guidelines, 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. Expenses and Value of a $1,000 Investment assuming a hypothetical 5% annualized return for the six months ended February 28, 2017 Expenses paid per $1,000 † $ Ending value (after expenses) $ † Expenses are equal to the fund’s annualized expense ratio of .45%, multiplied by the average account value over the period, multiplied by 181/365 (to reflect the one-half year period). 5 STATEMENT OF INVESTMENTS February 28, 2017 Negotiable Bank Certificates of Deposit - 38.8% Principal Amount ($) Value ($) Bank of Nova Scotia (Yankee) 1.22%, 3/14/17 5,000,000 a 5,000,000 BNP Paribas (Yankee) 1.26%, 6/16/17 5,000,000 5,000,000 Citibank N.A. (Yankee) 1.18%, 6/6/17 5,000,000 5,000,000 Credit Agricole CIB (Yankee) 1.00%, 3/23/17 5,000,000 5,000,000 Credit Suisse New York (Yankee) 1.15%, 3/22/17 5,000,000 5,000,000 Mizuho Bank Ltd/NY (Yankee) 1.10%, 4/20/17 5,000,000 b 5,000,000 Natixis New York (Yankee) 1.13%, 5/2/17 5,000,000 5,000,000 Norinchukin Bank/NY (Yankee) 1.32%, 8/25/17 5,000,000 5,000,000 Sumitomo Mitsui Banking Corp. (Yankee) 1.10%, 4/13/17 5,000,000 b 5,000,000 Sumitomo Mitsui Trust Bank (Yankee) 1.10%, 4/28/17 5,000,000 b 5,000,000 Wells Fargo Bank, NA 1.18%, 5/5/17 5,000,000 5,000,000 Total Negotiable Bank Certificates of Deposit (cost $55,000,000) Commercial Paper - 18.3% Alpine Securitization Ltd. 0.88%, 4/3/17 2,000,000 b 1,998,387 HSBC Bank PLC 1.40%, 3/27/17 5,000,000 a,b 5,000,000 Nederlandse Waterschapsbank 0.89%, 4/25/17 4,000,000 b 3,994,590 NRW Bank 1.05%, 4/18/17 5,000,000 b 4,993,000 Oversea-Chinese Banking Corp. 1.01%, 5/18/17 5,000,000 4,989,058 United Overseas Bank Ltd. 1.09%, 3/20/17 5,000,000 b 4,997,124 Total Commercial Paper (cost $25,972,159) Asset-Backed Commercial Paper - 3.5% Collateralized Commercial Paper II Co., LLC 1.21%, 6/6/17 (cost $4,983,833) 5,000,000 b 6 Time Deposits - 10.6% Principal Amount ($) Value ($) Credit Industriel et Commercial (Grand Cayman) 0.56%, 3/1/17 6,000,000 6,000,000 DZ Bank 0.56%, 3/1/17 7,000,000 7,000,000 Natixis New York (Grand Cayman) 0.56%, 3/1/17 2,000,000 2,000,000 Total Time Deposits (cost $15,000,000) U.S. Treasury Bills - 7.1% U. S. Treasury Bills 0.63%, 8/17/17 (cost $9,970,425) 10,000,000 Repurchase Agreements - 21.2% ABN AMRO Bank Tri-Party Agreement thru BNY Mellon, 0.54%, dated 2/28/17, due 3/1/17 in the amount of $15,000,225 (fully collateralized by $19,400,600 Agency Mortgage-Backed Securities, Interest Only, due 6/15/39-5/20/46, value $7,988,598, and $7,222,164 U.S. Treasuries (including strips), 0%-3.13%, due 3/31/17-2/15/25, value $7,311,402) 15,000,000 15,000,000 Credit Agricole CIB Tri-Party Agreement thru BNY Mellon, 0.52%, dated 2/28/17, due 3/1/17 in the amount of $10,000,144 (fully collateralized by $11,072,869 U.S. Treasuries (including strips), 0%-4.50%, due 6/30/18-11/15/45, value $10,200,000) 10,000,000 10,000,000 RBC Capital Markets Tri-Party Agreement thru BNY Mellon, 1.13%, dated 1/30/17, due 4/28/17 in the amount of $5,013,811 (fully collateralized by $4,802,210 Corporate Debt Securities, 1.98%-7.30%, due 3/1/21-3/1/47, value $5,150,001) 5,000,000 c 5,000,000 Total Repurchase Agreements (cost $30,000,000) Total Investments (cost $140,926,417) 99.5% Cash and Receivables (Net) .5% Net Assets 100.0% a Variable rate security—rate shown is the interest rate in effect at period end. Date shown represents the earlier of the next interest reset date or ultimate maturity date. b Security 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 February 28, 2017, these securities amounted to $40,966,934 or 28.92% of net assets. c Illiquid security; investment has a put feature and a variable or floating rate. The interest rate shown is the current rate as of February 28, 2017 and changes periodically. The maturity date reflects early termination date and the amount due represents the receivable of the fund as of the next interest payment date. At February 28, 2017, these securities amounted to $5,000,000 or 3.53% of net assets. 7 STATEMENT OF INVESTMENTS (continued) Portfolio Summary (Unaudited) † Value (%) Banking 63.5 Repurchase Agreements 21.2 U.S. Government 7.1 Finance 4.2 Asset-Backed/Banking 3.5 † Based on net assets. See notes to financial statements. 8 STATEMENT OF ASSETS AND LIABILITIES February 28, 2017 Cost Value Assets ($): Investments in securities—See Statement of Investments (including repurchase agreements of $30,000,000)—Note 1(b) 140,926,417 140,926,417 Cash 732,294 Interest receivable 136,673 Prepaid expenses 10,623 141,806,007 Liabilities ($): Due to The Dreyfus Corporation and affiliates—Note 2(b) 83,704 Payable for shares of Common Stock redeemed 1,864 Accrued expenses 63,082 148,650 Net Assets ($) 141,657,357 Composition of Net Assets ($): Paid-in capital 141,694,644 Accumulated net realized gain (loss) on investments (37,287) Net Assets ($) 141,657,357 Shares Outstanding (3 billion shares of $.001 par value Common Stock authorized) 141,694,644 Net Asset Value Per Share ($) See notes to financial statements. 9 STATEMENT OF OPERATIONS Year Ended February 28, 2017 Investment Income ($): Interest Income 1,068,469 Expenses: Management fee—Note 2(a) 795,908 Shareholder servicing costs—Note 2(b) 203,540 Professional fees 109,795 Custodian fees—Note 2(b) 50,742 Registration fees 28,427 Prospectus and shareholders’ reports 12,093 Directors’ fees and expenses—Note 2(c) 9,723 Miscellaneous 17,497 Total Expenses 1,227,725 Less—reduction in expenses due to undertaking—Note 2(a) (519,115) Less—reduction in fees due to earnings credits—Note 2(b) (4,931) Net Expenses 703,679 Investment Income—Net 364,790 Net Realized Gain (Loss) on Investments—Note 1(b) ($) 12,336 Net Increase in Net Assets Resulting from Operations 377,126 See notes to financial statements. 10 STATEMENT OF CHANGES IN NET ASSETS Year Ended February 28/29, 2017 2016 Operations ($): Investment income—net 364,790 15,356 Net realized gain (loss) on investments 12,336 25,882 Net Increase (Decrease) in Net Assets Resulting from Operations 377,126 41,238 Distributions to Shareholders from ($): Investment income—net Capital Stock Transactions ($1.00 per share): Net proceeds from shares sold 45,386,417 61,737,926 Distributions reinvested 350,847 14,975 Cost of shares redeemed (92,328,601) (79,997,079) Increase (Decrease) in Net Assets from Capital Stock Transactions Total Increase (Decrease) in Net Assets Net Assets ($): Beginning of Period 188,236,358 206,454,654 End of Period 141,657,357 188,236,358 See notes to financial statements. 11 FINANCIAL HIGHLIGHTS The following table describes the performance for the fiscal periods indicated. Total return shows how much your investment in the fund would have increased (or decreased) during each period, assuming you had reinvested all dividends and distributions. These figures have been derived from the fund’s financial statements. Year Ended February 28/29, 2017 2016 2015 2014 2013 Per Share Data ($): Net asset value, beginning of period 1.00 1.00 1.00 1.00 1.00 Investment Operations: Investment income—net .002 .000 a .000 a .000 a .000 a Distributions: Dividends from investment income—net (.002) (.000) a (.000) a (.000) a (.000) a Net asset value, end of period 1.00 1.00 1.00 1.00 1.00 Total Return (%) .24 .01 .00 b .00 b .00 b Ratios/Supplemental Data (%): Ratio of total expenses to average net assets .77 .77 .72 .71 .68 Ratio of net expenses to average net assets .44 .25 .17 .17 .22 Ratio of net investment income to average net assets .23 .01 .00 b .00 b .00 b Net Assets, end of period ($ x 1,000) 141,657 188,236 206,455 253,729 303,355 a Amount represents less than $.001 per share. b Amount represents less than .01%. See notes to financial statements. 12 NOTES TO FINANCIAL STATEMENTS NOTE 1—Significant Accounting Policies: Dreyfus BASIC Money Market Fund, Inc. (the “fund”) is registered under the Investment Company Act of 1940, as amended (the “Act”), as a diversified open-end management investment company. The fund’s investment objective is to seek as high a level of current income as is consistent with the preservation of capital and the maintenance of liquidity. The Dreyfus Corporation (the “Manager” or “Dreyfus”), a wholly-owned subsidiary of The Bank of New York Mellon Corporation (“BNY Mellon”), serves as the fund’s investment adviser. MBSC Securities Corporation (the “Distributor”), a wholly-owned subsidiary of Dreyfus, is the distributor of the fund’s shares, which are sold to the public without a sales charge. It is the fund’s policy to maintain a constant net asset value (“NAV”) per share of $1.00; the fund has adopted certain investment, portfolio valuation and dividend and distribution policies to enable it to do so. There is no assurance, however, that the fund will be able to maintain a constant NAV per share of $1.00. The fund operates as a “retail money market fund” as that term is defined in Rule 2a-7 under the Act, and, as such, the fund may, or in certain circumstances, must impose a fee upon the sale of shares or may temporarily suspend redemptions if the fund’s weekly liquid assets fall below required minimums because of market conditions or other factors. The Financial Accounting Standards Board (“FASB”) Accounting Standards Codification is the exclusive reference of authoritative U.S. generally accepted accounting principles (“GAAP”) recognized by the FASB to be applied by nongovernmental entities. Rules and interpretive releases of the Securities and Exchange Commission (“SEC”) under authority of federal laws are also sources of authoritative GAAP for SEC registrants. The fund’s financial statements are prepared in accordance with GAAP, which may require the use of management estimates and assumptions. Actual results could differ from those estimates. The fund enters into contracts that contain a variety of indemnifications. The fund’s maximum exposure under these arrangements is unknown. The fund does not anticipate recognizing any loss related to these arrangements. (a) Portfolio valuation: Investments in securities are valued at amortized cost in accordance with Rule 2a-7 under the Act. If amortized cost is determined not to approximate market value, the fair value of the portfolio 13 NOTES TO FINANCIAL STATEMENTS (continued) securities will be determined by procedures established by and under the general supervision of the fund’s Board of Directors (the “Board”). The fair value of a financial instrument is the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (i.e., the exit price). GAAP establishes a fair value hierarchy that prioritizes the inputs of valuation techniques used to measure fair value. This hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to unobservable inputs (Level 3 measurements). Additionally, GAAP provides guidance on determining whether the volume and activity in a market has decreased significantly and whether such a decrease in activity results in transactions that are not orderly. GAAP requires enhanced disclosures around valuation inputs and techniques used during annual and interim periods. Various inputs are used in determining the value of the fund’s investments relating to fair value measurements. These inputs are summarized in the three broad levels listed below: Level 1 —unadjusted quoted prices in active markets for identical investments. Level 2 —other significant observable inputs (including quoted prices for similar investments, interest rates, prepayment speeds, credit risk, etc.). Level 3 —significant unobservable inputs (including the fund’s own assumptions in determining the fair value of investments). The inputs or methodology used for valuing securities are not necessarily an indication of the risk associated with investing in those securities. For example, money market securities are valued using amortized cost, in accordance with rules under the Act. Generally, amortized cost approximates the current fair value of a security, but since the value is not obtained from a quoted price in an active market, such securities are reflected within Level 2 of the fair value hierarchy. The following is a summary of the inputs used as of February 28, 2017 in valuing the fund’s investments: 14 Valuation Inputs Short-Term Investments ($) † Level 1 - Unadjusted Quoted Prices - Level 2 - Other Significant Observable Inputs 140,926,417 Level 3 - Significant Unobservable Inputs - Total † See Statement of Investments for additional detailed categorizations. At February 28, 2017, there were no transfers between levels of the fair value hierarchy. (b) Securities transactions and investment income: Securities transactions are recorded on a trade date basis. Interest income, adjusted for accretion of discount and amortization of premium on investments, is earned from settlement date and is recognized on the accrual basis. Realized gains and losses from securities transactions are recorded on the identified cost basis. The fund may enter into repurchase agreements with financial institutions, deemed to be creditworthy by Dreyfus, subject to the seller’s agreement to repurchase and the fund’s agreement to resell such securities at a mutually agreed upon price. Pursuant to the terms of the repurchase agreement, such securities must have an aggregate market value greater than or equal to the terms of the repurchase price plus accrued interest at all times. If the value of the underlying securities falls below the value of the repurchase price plus accrued interest, the fund will require the seller to deposit additional collateral by the next business day. If the request for additional collateral is not met, or the seller defaults on its repurchase obligation, the fund maintains its right to sell the underlying securities at market value and may claim any resulting loss against the seller. The collateral is held on behalf of the fund by the tri-party administrator with respect to any tri-party agreement. The fund may also jointly enter into one or more repurchase agreements with other Dreyfus-managed funds in accordance with an exemptive order granted by the SEC pursuant to section 17(d) and Rule 17d-1 under the Act. Any joint repurchase agreements must be collateralized fully by U.S. Government securities. (c) Dividends and distributions to shareholders: It is the policy of the fund to declare dividends daily from investment income-net. Such dividends are paid monthly. Dividends from net realized capital gains, if any, are normally declared and paid annually, but the fund may make distributions on a more frequent basis to comply with the distribution requirements of the Internal Revenue Code of 1986, as amended (the “Code”). To the extent that net realized capital gains can be offset by capital loss carryovers, it is the policy of the fund not to distribute such gains. 15 NOTES TO FINANCIAL STATEMENTS (continued) (d) Federal income taxes: It is the policy of the fund to continue to qualify as a regulated investment company, if such qualification is in the best interests of its shareholders, by complying with the applicable provisions of the Code, and to make distributions of taxable income sufficient to relieve it from substantially all federal income and excise taxes. As of and during the period ended February 28, 2017, the fund did not have any liabilities for any uncertain tax positions. The fund recognizes interest and penalties, if any, related to uncertain tax positions as income tax expense in the Statement of Operations. During the period ended February 28, 2017, the fund did not incur any interest or penalties. Each tax year in the four-year period ended February 28, 2017 remains subject to examination by the Internal Revenue Service and state taxing authorities. At February 28, 2017, the components of accumulated earnings on a tax basis were substantially the same as for financial reporting purposes. Under the Regulated Investment Company Modernization Act of 2010 (the “2010 Act”), the fund is permitted to carry forward capital losses incurred in taxable years beginning after December 22, 2010 (“post-enactment losses”) for an unlimited period. Furthermore, post-enactment capital loss carryovers retain their character as either short-term or long-term capital losses rather than short-term as they were under previous statute. The 2010 Act requires post-enactment losses to be utilized before the utilization of losses incurred in taxable years prior to the effective date of the 2010 Act (“pre-enactment losses”). As a result of this ordering rule, pre-enactment losses may be more likely to expire unused. The accumulated capital loss carryover is available for federal income tax purposes to be applied against future net realized capital gains, if any, realized subsequent to February 28, 2017. If not applied, the carryover of $37,287 expires in fiscal year 2018. The tax character of distributions paid to shareholders during the fiscal periods ended February 28, 2017 and February 29, 2016 were all ordinary income. At February 28, 2017, the cost of investments for federal income tax purposes was substantially the same as the cost for financial reporting purposes (see the Statement of Investments). 16 NOTE 2—Management Fee and Other Transactions with Affiliates: (a) Pursuant to a management agreement with Dreyfus, the management fee is computed at the annual rate of .50% of the value of the fund’s average daily net assets and is payable monthly. Dreyfus has contractually agreed to waive receipt of its fees and/or assume the expenses of the fund so that total annual fund operating expenses do not exceed .45% of the value of the fund’s average daily net assets. Dreyfus may terminate this undertaking agreement upon at least 90 days’ prior notice to shareholders, but has committed not to do so until at least July 1, 2017. The reduction in expenses, pursuant to the undertaking, amounted to $509,257 during the period ended February 28, 2017. Dreyfus has also undertaken to waive receipt of the management fee and/or reimburse operating expenses in order to facilitate a daily yield at or above a certain level which may change from time to time. This undertaking is voluntary and not contractual, and may be terminated at any time. The reduction in expenses, pursuant to the undertaking, amounted to $9,858 during the period ended February 28, 2017. (b) Under the Shareholder Services Plan, the fund reimburses the Distributor at an amount not to exceed an annual rate of .25% of the value of the fund’s average daily net assets for the provision of certain services. The services provided may include personal services relating to shareholder accounts, such as answering shareholder inquiries regarding the fund and providing reports and other information, and services related to the maintenance of shareholder accounts. During the period ended February 28, 2017, the fund was charged $126,861 pursuant to the Shareholder Services Plan. The fund has arrangements with the transfer agent and the custodian whereby the fund may receive earnings credits when positive cash balances are maintained, which are used to offset transfer agency and custody fees. For financial reporting purposes, the fund includes net earnings credits as an expense offset in the Statement of Operations. The fund compensates Dreyfus Transfer, Inc., a wholly-owned subsidiary of Dreyfus, under a transfer agency agreement for providing transfer agency and cash management services for the fund. The majority of transfer agency fees are comprised of amounts paid on a per account basis, while cash management fees are related to fund subscriptions and redemptions. During the period ended February 28, 2017, the fund was charged $61,393 for transfer agency services and $3,609 for cash management services. These fees are included in Shareholder servicing 17 NOTES TO FINANCIAL STATEMENTS (continued) costs in the Statement of Operations. Cash management fees were partially offset by earnings credits of $2,151. The fund compensates The Bank of New York Mellon, a subsidiary of BNY Mellon and an affiliate of Dreyfus, under a custody agreement for providing custodial services for the fund. These fees are determined based on net assets, geographic region and transaction activity. During the period ended February 28, 2017, the fund was charged $50,742 pursuant to the custody agreement. These fees were partially offset by earnings credits of $2,780. The fund compensates The Bank of New York Mellon under a shareholder redemption draft processing agreement for providing certain services related to the fund’s check writing privilege. During the period ended February 28, 2017, the fund was charged $2,429 pursuant to the agreement, which is included in Shareholder servicing costs in the Statement of Operations. During the period ended February 28, 2017, the fund was charged $11,110 for services performed by the Chief Compliance Officer and his staff. The components of “Due to The Dreyfus Corporation and affiliates” in the Statement of Assets and Liabilities consist of: management fees $54,719, Shareholder Services Plan fees $13,000, custodian fees $44,761, Chief Compliance Officer fees $4,670 and transfer agency fees $13,569, which are offset against an expense reimbursement currently in effect in the amount of $47,015. (c) Each Board member also serves as a Board member of other funds within the Dreyfus complex. Annual retainer fees and attendance fees are allocated to each fund based on net assets. 18 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM Shareholders and Board of Directors Dreyfus BASIC Money Market Fund, Inc. We have audited the accompanying statement of assets and liabilities of Dreyfus BASIC Money Market Fund, Inc., including the statement of investments, as of February 28, 2017, and the related statement of operations for the year then ended, the statement of changes in net assets for each of the two years in the period then ended, and the financial highlights for each of the five years in the period then ended. These financial statements and financial highlights are the responsibility of the Fund’s management. Our responsibility is to express an opinion on these financial statements and financial highlights 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 and financial highlights are free of material misstatement. We were not engaged to perform an audit of the Fund’s 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 Fund’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 and financial highlights, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. Our procedures included confirmation of securities owned as of February 28, 2017 by correspondence with the custodian and others. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements and financial highlights referred to above present fairly, in all material respects, the financial position of Dreyfus BASIC Money Market Fund, Inc. at February 28, 2017, the results of its operations for the year then ended, the changes in its net assets for each of the two years in the period then ended, and the financial highlights for each of the five years in the period then ended, in conformity with U.S. generally accepted accounting principles. New York, New York April 26, 2017 19 IMPORTANT TAX INFORMATION (Unaudited) For federal tax purposes the fund hereby reports 89.19% of ordinary income dividends paid during the fiscal year ended February 28, 2017 as qualifying interest related dividends. 20 BOARD MEMBERS INFORMATION (Unaudited) INDEPENDENT BOARD MEMBERS Joseph S. DiMartino (73) Chairman of the Board (1995) Principal Occupation During Past 5 Years: · Corporate Director and Trustee (1995-present) Other Public Company Board Memberships During Past 5 Years: · CBIZ (formerly, Century Business Services, Inc.), a provider of outsourcing functions for small and medium size companies, Director (1997-present) No. of Portfolios for which Board Member Serves: ————— Francine J. Bovich (65) Board Member (2012) Principal Occupation During Past 5 Years: · Trustee, The Bradley Trusts, private trust funds (2011-present) Other Public Company Board Memberships During Past 5 Years: · Annaly Capital Management, Inc., Board Member (May 2014-present) No. of Portfolios for which Board Member Serves: 76 ————— Peggy C. Davis (74) Board Member (2007) Principal Occupation During Past 5 Years: · Shad Professor of Law, New York University School of Law (1983-present) No. of Portfolios for which Board Member Serves: 49 ————— Diane Dunst (77) Board Member (1994) Principal Occupation During Past 5 Years: · President of Huntting House Antiques (1999-present) No. of Portfolios for which Board Member Serves: 14 ————— 21 BOARD MEMBERS INFORMATION (Unaudited) (continued) INDEPENDENT BOARD MEMBERS (continued) Nathan Leventhal (74) Board Member (2007) Principal Occupation During Past 5 Years: · President Emeritus of Lincoln Center for the Performing Arts (2001-present) · Chairman of the Avery Fisher Artist Program (1997-2014) · Commissioner, NYC Planning Commission (2007-2011) Other Public Company Board Memberships During Past 5 Years: · Movado Group, Inc., Director (2003-present) No. of Portfolios for which Board Member Serves: 48 ————— Robin A. Melvin (53) Board Member (2012) Principal Occupation During Past 5 Years: · Co-chairman, Illinois Mentoring Partnership, non-profit organization dedicated to increasing the quantity and quality of mentoring services in Illinois (2014-present; board member since 2013) · Director, Boisi Family Foundation, a private family foundation that supports youth-serving organizations that promote the self sufficiency of youth from disadvantaged circumstances (1995-2012) No. of Portfolios for which Board Member Serves: ————— Once elected all Board Members serve for an indefinite term, but achieve Emeritus status upon reaching age 80. The address of the Board Members and Officers is c/o The Dreyfus Corporation, 200 Park Avenue, New York, New York 10166. Additional information about the Board Member is available in the fund’s Statement of Additional Information which can be obtained from Dreyfus free of charge by calling this toll free number: 1-800-DREYFUS. Clifford L. Alexander, Jr., Emeritus Board Member Ernest Kafka, Emeritus Board Member Jay I. Meltzer, Emeritus Board Member Daniel Rose, Emeritus Board Member Sander Vanocur, Emeritus Board Member 22 OFFICERS OF THE FUND (Unaudited) BRADLEY J. SKAPYAK, President since January 2010. Chief Operating Officer and a director of the Manager since June 2009, Chairman of Dreyfus Transfer, Inc., an affiliate of the Manager and the transfer agent of the funds, since May 2011 and Chief Executive Officer of MBSC Securities Corporation since August 2016. He is an officer of 64 investment companies (comprised of 135 portfolios) managed by the Manager. He is 58 years old and has been an employee of the Manager since February 1988. BENNETT A. MACDOUGALL, Chief Legal Officer since October 2015. Chief Legal Officer of the Manager and Associate General Counsel and Managing Director of BNY Mellon since June 2015; from June 2005 to June 2015, he served in various capacities with Deutsche Bank – Asset & Wealth Management Division, including as Director and Associate General Counsel, and Chief Legal Officer of Deutsche Investment Management Americas Inc. from June 2012 to May 2015. He is an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 45 years old and has been an employee of the Manager since June 2015. JANETTE E. FARRAGHER, Vice President and Secretary since December 2011. Associate General Counsel of BNY Mellon, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. She is 54 years old and has been an employee of the Manager since February 1984. JAMES BITETTO, Vice President and Assistant Secretary since August 2005. Managing Counsel of BNY Mellon and Secretary of the Manager, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 50 years old and has been an employee of the Manager since December 1996. JONI LACKS CHARATAN, Vice President and Assistant Secretary since August 2005. Managing Counsel of BNY Mellon, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. She is 61 years old and has been an employee of the Manager since October 1988. JOSEPH M. CHIOFFI, Vice President and Assistant Secretary since August 2005. Managing Counsel of BNY Mellon, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 55 years old and has been an employee of the Manager since June 2000. MAUREEN E. KANE, Vice President and Assistant Secretary since April 2015. Managing Counsel of BNY Mellon since July 2014; from October 2004 until July 2014, General Counsel, and from May 2009 until July 2014, Chief Compliance Officer of Century Capital Management. She is an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. She is 55 years old and has been an employee of the Manager since July 2014. SARAH S. KELLEHER, Vice President and Assistant Secretary since April 2014. Senior Counsel of BNY Mellon since March 2013, from August 2005 to March 2013, Associate General Counsel of Third Avenue Management. She is an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. She is 41 years old and has been an employee of the Manager since March 2013. JEFF PRUSNOFSKY, Vice President and Assistant Secretary since August 2005. Senior Managing Counsel of BNY Mellon, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 51 years old and has been an employee of the Manager since October 1990. JAMES WINDELS, Treasurer since November 2001. Director – Mutual Fund Accounting of the Manager, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 58 years old and has been an employee of the Manager since April 1985. RICHARD CASSARO, Assistant Treasurer since January 2008. Senior Accounting Manager – Money Market and Municipal Bond Funds of the Manager, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 58 years old and has been an employee of the Manager since September 1982. 23 OFFICERS OF THE FUND (Unaudited) (continued) GAVIN C. REILLY, Assistant Treasurer since December 2005. Tax Manager of the Investment Accounting and Support Department of the Manager, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 48 years old and has been an employee of the Manager since April 1991. ROBERT S. ROBOL, Assistant Treasurer since August 2003. Senior Accounting Manager of the Manager, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 52 years old and has been an employee of the Manager since October 1988. ROBERT SALVIOLO, Assistant Treasurer since July 2007. Senior Accounting Manager – Equity Funds of the Manager, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 49 years old and has been an employee of the Manager since June 1989. ROBERT SVAGNA, Assistant Treasurer since August 2005. Senior Accounting Manager – Fixed Income and Equity Funds of the Manager, and an officer of 65 investment companies (comprised of 160 portfolios) managed by the Manager. He is 49 years old and has been an employee of the Manager since November 1990. JOSEPH W. CONNOLLY, Chief Compliance Officer since October 2004. Chief Compliance Officer of the Manager and The Dreyfus Family of Funds (65 investment companies, comprised of 160 portfolios). He is 59 years old and has served in various capacities with the Manager since 1980, including manager of the firm’s Fund Accounting Department from 1997 through October 2001. CARIDAD M. CAROSELLA, Anti-Money Laundering Compliance Officer since January 2016 Anti-Money Laundering Compliance Officer of the Dreyfus Family of Funds and BNY Mellon Funds Trust since January 2016; from May 2015 to December 2015, Interim Anti-Money Laundering Compliance Officer of the Dreyfus Family of Funds and BNY Mellon Funds Trust and the Distributor; from January 2012 to May 2015, AML Surveillance Officer of the Distributor and from 2007 to December 2011, Financial Processing Manager of the Distributor. She is an officer of 60 investment companies (comprised of 155 portfolios) managed by the Manager. She is 48 years old and has been an employee of the Distributor since 1997. 24 NOTES 25 For More Information Dreyfus BASIC Money Market Fund, Inc. 200 Park Avenue New York, NY 10166 Manager The Dreyfus Corporation 200 Park Avenue New York, NY 10166 Custodian The Bank of New York Mellon 225 Liberty Street New York, NY 10286 Transfer Agent & Dividend Disbursing Agent Dreyfus Transfer, Inc. 200 Park Avenue New York, NY 10166 Distributor MBSC Securities Corporation 200 Park Avenue New York, NY 10166 Ticker Symbol: DBAXX Telephone Call your financial representative or 1-800-DREYFUS Mail The Dreyfus Family of Funds, 144 Glenn Curtiss Boulevard, Uniondale, NY 1556-0144 E-mail Send your request to [email protected] Internet Information can be viewed online or downloaded at www.dreyfus.com The fund will disclose daily, on www.dreyfus.com , the fund’s complete schedule of holdings as of the end of the previous business day. The schedule of holdings will remain on the website until the fund files its Form N-Q or Form N-CSR for the period that includes the date of the posted holdings. The fund files its complete schedule of portfolio holdings with the Securities and Exchange Commission (“SEC”) for the first and third quarters of each fiscal year on Form N-Q. The fund’s Forms N-Q are available on the SEC’s website at www.sec.gov and may be reviewed and copied at the SEC’s Public Reference Room in Washington, DC. (phone 1-800-SEC-0330 for information). Information regarding how the fund voted proxies related to portfolio securities for the most recent 12-month period ended June 30 is available at www.dreyfus.com and on the SEC’s website at www.sec.gov and without charge, upon request, by calling 1-800-DREYFUS. © 2ecurities Corporation 0123AR0217 Item 2. Code of Ethics. The Registrant has adopted a code of ethics that applies to the Registrant's principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. There have been no amendments to, or waivers in connection with, the Code of Ethics during the period covered by this Report. Item 3. Audit Committee Financial Expert. The Registrant's Board has determined that Joseph S. DiMartino, a member of the Audit Committee of the Board, is an audit committee financial expert as defined by the Securities and Exchange Commission (the "SEC"). Mr. DiMartino is "independent" as defined by the SEC for purposes of audit committee financial expert determinations. Item 4. Principal Accountant Fees and Services. (a) Audit Fees. The aggregate fees billed for each of the last two fiscal years (the "Reporting Periods") for professional services rendered by the Registrant's principal accountant (the "Auditor") for the audit of the Registrant's annual financial statements or services that are normally provided by the Auditor in connection with the statutory and regulatory filings or engagements for the Reporting Periods, were $33,856 in 2016 and $34,702 in 2017. (b) Audit-Related Fees. The aggregate fees billed in the Reporting Periods for assurance and related services by the Auditor that are reasonably related to the performance of the audit of the Registrant's financial statements and are not reported under paragraph (a) of this Item 4 were $6,430 in 2016 and $6,591 in 2017. These services consisted of one or more of the following: (i) agreed upon procedures related to compliance with Internal Revenue Code section 817(h), (ii) security counts required by Rule 17f-2 under the Investment Company Act of 1940, as amended, (iii) advisory services as to the accounting or disclosure treatment of Registrant transactions or events and (iv) advisory services to the accounting or disclosure treatment of the actual or potential impact to the Registrant of final or proposed rules, standards or interpretations by the Securities and Exchange Commission, the Financial Accounting Standards Boards or other regulatory or standard-setting bodies. The aggregate fees billed in the Reporting Periods for non-audit assurance and related services by the Auditor to the Registrant's investment adviser (not including any sub-investment adviser whose role is primarily portfolio management and is subcontracted with or overseen by another investment adviser), and any entity controlling, controlled by or under common control with the investment adviser that provides ongoing services to the Registrant ("Service Affiliates"), that were reasonably related to the performance of the annual audit of the Service Affiliate, which required pre-approval by the Audit Committee were $0 in 2016 and $0 in 2017. (c) Tax Fees. The aggregate fees billed in the Reporting Periods for professional services rendered by the Auditor for tax compliance, tax advice, and tax planning ("Tax Services") were $3,575 in 2016 and $3,636 in 2017. These services consisted of: (i) review or preparation of U.S. federal, state, local and excise tax returns; (ii) U.S. federal, state and local tax planning, advice and assistance regarding statutory, regulatory or administrative developments; (iii) tax advice regarding tax qualification matters and/or treatment of various financial instruments held or proposed to be acquired or held. The aggregate fees billed in the Reporting Periods for Tax Services by the Auditor to Service Affiliates, which required pre-approval by the Audit Committee were $0 in 2016 and $0 in 2017. (d) All Other Fees. The aggregate fees billed in the Reporting Periods for products and services provided by the Auditor, other than the services reported in paragraphs (a) through (c) of this Item, were $511 in 2016 and $617 in 2017. These services consisted of a review of the Registrant's anti-money laundering program. The aggregate fees billed in the Reporting Periods for Non-Audit Services by the Auditor to Service Affiliates, other than the services reported in paragraphs (b) through (c) of this Item, which required pre-approval by the Audit Committee, were $0 in 2016 and $0 in 2017. (e)(1) Audit Committee Pre-Approval Policies and Procedures. The Registrant's Audit Committee has established policies and procedures (the "Policy") for pre-approval (within specified fee limits) of the Auditor's engagements for non-audit services to the Registrant and Service Affiliates without specific case-by-case consideration. The pre-approved services in the Policy can include pre-approved audit services, pre-approved audit-related services, pre-approved tax services and pre-approved all other services. Pre-approval considerations include whether the proposed services are compatible with maintaining the Auditor's independence. Pre-approvals pursuant to the Policy are considered annually. (e)(2) Note. None of the services described in paragraphs (b) through (d) of this Item 4 were approved by the Audit Committee pursuant to paragraph (c)(7)(i)(C) of Rule 2-01 of Regulation S-X. (f) None of the hours expended on the principal accountant's engagement to audit the registrant's financial statements for the most recent fiscal year were attributed to work performed by persons other than the principal account's full-time, permanent employees. Non-Audit Fees. The aggregate non-audit fees billed by the Auditor for services rendered to the Registrant, and rendered to

Exhibit 10.3 WELLS CORE OFFICE INCOME REIT, INC. DEALER MANAGER AGREEMENT June 10, 2010 Wells Investment Securities, Inc. 6200 The Corners Parkway Suite 250 Norcross, Georgia 30092 Ladies and Gentlemen: Wells Core Office Income REIT, Inc., a Maryland corporation (the “Company”), has registered for public sale 230,000,000 shares of its common stock, $.01 par value per share (the “Shares”), of which 200,000,000 Shares are intended to be offered in the primary offering (the “Primary Offering Shares”) and 30,000,000 Shares are intended to be offered pursuant to the Company’s dividend reinvestment plan (the “DRP”). The Company desires for Wells Investment Securities, Inc. (the “Dealer Manager”) to act as its agent in connection with the offer and sale of the Shares to the public (the “Offering”). Except as described in the Prospectus or in Section 5.4 hereof, the Shares are to be sold for a per Share cash price as follows:   Distribution Channel    Primary Offering    DRP Dealers    $ 25.00    $ 23.75 Advisers affiliated with a Dealer*    $ 23.25    $ 23.75 Advisers (not affiliated with a broker-dealer) and banks acting as trustees or fiduciaries    $ 23.00    $ 23.75   * This distribution channel refers to sales through investment advisory representatives affiliated with a participating broker-dealer in which the representative is compensated on a fee-for-service basis by the investor. Throughout the remainder of this agreement and the Selected Dealer Agreement, we refer to this channel as “Advisers affiliated with a Dealer.” In connection with the sale of Shares, the Company hereby agrees with you, the Dealer Manager, as follows:   1. Representations and Warranties of the Company. As an inducement to the Dealer Manager to enter into this Agreement, the Company represents and warrants to the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this   Agreement as Exhibit A (said dealers being hereinafter referred to as the “Dealers”) that:     1.1. The Company has prepared and filed with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-11 (File No. 333-163411), which has become effective, for the registration of the Shares applicable rules and regulations (the “Rules and Regulations”) of the SEC promulgated thereunder. Copies of such registration statement as initially filed and each amendment thereto have been or will be delivered to the Dealer Manager. The registration statement and the prospectus contained therein, as finally amended at the effective date of the registration statement (the “Effective Date”), are respectively hereinafter referred to as the “Registration Statement” and the “Prospectus,” except that if the Company files a prospectus or prospectus supplement pursuant to Rule 424(b) under the Securities Act, or if the Company files a post-effective amendment to the Registration Statement, the term “Prospectus” includes the prospectus filed pursuant to Rule 424(b) or the prospectus included in such post-effective amendment. The term “Preliminary Prospectus” as used herein shall mean a preliminary prospectus related to the Shares as contemplated by Rule 430 or Rule 430A of the Rules and Regulations included at any time as part of the Registration Statement.     1.2. On the date that any Preliminary Prospectus was filed with the SEC, on the Effective Date, on the date of the Prospectus and when any post-effective amendment to the Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the SEC, the Registration Statement, each Preliminary Prospectus and the Prospectus, as applicable, including the financial statements contained therein, complied or will comply with the Securities Act and the Rules and Regulations. On the Effective Date, the Registration Statement did not or will not contain any untrue statement of a circumstances under which they were made, not misleading. On the date of the Prospectus, as amended or supplemented, as applicable, the Prospectus did not or will not, as the case may be, contain any untrue statement of a material fact or they were made, not misleading; provided, however, that the foregoing provisions of this Section 1.2 will not extend to such statements contained in or omitted from the Registration Statement or the Prospectus, as amended or supplemented, as are primarily within the knowledge of the Dealer Manager or any of the Dealers and are based upon information furnished by the Dealer Manager in writing to the Company specifically for inclusion therein.   - 2 -   1.3. No order preventing or suspending the use of any Preliminary Prospectus or the Prospectus has been issued and no proceedings for that purpose are pending, threatened, or, to the knowledge of the Company, contemplated by the SEC; and to the knowledge of the Company, no order suspending the offering of the Shares in any jurisdiction has been issued and no proceedings for that purpose have been instituted or threatened or are contemplated.     1.4. The Company intends to use the funds received from the sale of the Shares as set forth in the Prospectus.     1.5. The Company has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, and the Company has duly authorized, executed and delivered this Agreement.     1.6. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms of this Agreement by the Company will not conflict with or constitute a default or violation under any charter, by-law, contract, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company, except to the extent that the enforceability of the indemnity and contribution provisions contained in Section 6 of this Agreement may be limited under applicable securities laws.     1.7. No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Company of this Agreement or the issuance and sale by the Company of the Shares, except such as may be required under the securities laws of certain states, if any, which we have identified to you.     1.8. The Shares have been duly authorized and, upon payment therefor as contemplated by the Prospectus, will be validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Prospectus.   2. Representations and Warranties of the Dealer Manager. As an inducement to the Company to enter into this Agreement, the Dealer Manager represents and warrants to the Company that:     2.1. The Dealer Manager is a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”) in good standing and a broker-dealer registered as and under the securities laws of the states in which the Shares are to be offered and sold. The Dealer Manager and its employees and representatives have all required licenses and registrations to act under this Agreement.   - 3 -   2.2. The Dealer Manager has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, and the Dealer Manager has duly authorized, executed and delivered this Agreement.     2.3. The execution and delivery of this Agreement, the consummation of the Agreement by the Dealer Manager will not conflict with or constitute a default over the Dealer Manager, except to the extent that the enforceability of the indemnity and contribution provisions contained in Section 6 of this Agreement may be limited under applicable securities laws.     2.4. No consent, approval, authorization or other order of any governmental authority is required in connection with the execution, delivery or performance by the Dealer Manager of this Agreement.     2.5. The Dealer Manager represents and warrants to the Company and each person that signs the Registration Statement that the information under the caption “Plan of Distribution” in the Prospectus and all other information furnished to the Company by the Dealer Manager in writing expressly for use in the Registration Statement, any Preliminary Prospectus, or the Prospectus, does not not misleading.   3. Covenants of the Company. The Company covenants and agrees with the Dealer Manager that:     3.1. It will, at no expense to the Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement, including all amendments and exhibits thereto, as the Dealer Manager may reasonably request. It will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request in connection with the offering of the Shares of: (a) the Prospectus; (b) this Agreement; and (c) any other printed sales literature or other materials (provided that the use of said sales literature and other materials has been first approved for use by the Company and all appropriate regulatory agencies).     3.2. It will furnish such information and execute and file such documents as may be necessary for the Company to qualify the Shares for offer and sale under the securities laws of such jurisdictions as the Dealer Manager may reasonably designate and will file and make in each year such statements   - 4 -   and reports as may be required. The Company will furnish to the Dealer Manager a copy of such papers filed by the Company in connection with any such qualification.     3.3. It will: (a) furnish copies of any proposed amendment or supplement of the Registration Statement or the Prospectus to the Dealer Manager; (b) file every amendment or supplement to the Registration Statement or the Prospectus that may be required by the SEC or any state securities administration; and (c) if at any time the SEC shall issue any stop order suspending the effectiveness of the Registration Statement or any state securities administration shall issue any order or take other action to suspend or enjoin the sale of the Shares, it will promptly notify the Dealer Manager and will use its best efforts to obtain the lifting of such order or to prevent such other action at the earliest possible time.     3.4. If at any time when a prospectus is required to be delivered under the Securities Act any event occurs as a result of which, in the opinion of either the Company or the Dealer Manager, the Prospectus would include an untrue make the statements therein, in view of the circumstances under which they were made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and will effect the preparation of an amendment or supplement to the Prospectus which will correct such statement or omission.     3.5. It will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, by the rules and regulations of the SEC promulgated thereunder as from time to time in effect, and by all state securities laws and regulations of those states in which an exemption has been obtained or qualification of the Shares has been effected, to permit the continuance of offers and sales of the Shares in accordance with the provisions hereof and of the Prospectus.     3.6. It will pay all expenses incident to the performance of its obligations under this Agreement, including (a) the preparation, filing and printing of the Registration Statement as originally filed and of each amendment thereto, (b) the preparation, printing and delivery to the Dealer Manager of this Agreement, the Selected Dealer Agreement and such other documents as may be required in connection with the offering, sale, issuance and delivery of the Shares, (c) the fees and disbursements of the Company’s counsel, accountants and other advisors, (d) the fees and expenses related to the review of the terms and fairness of the Offering by FINRA; (e) the fees and expenses related to the qualification of the Shares under securities laws in accordance with the provisions of Section 3.2 hereof, including the fees and disbursements of counsel in connection with the preparation of any Blue Sky survey and any supplement thereto, (f) the printing and   - 5 -   delivery to the Dealer Manager of copies of any Preliminary Prospectus and the Prospectus, (g) the fees and expenses of any registrar, transfer agent or paying agent in connection with the Shares and (h) the costs and expenses of the Company relating to investor presentations undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the production of slides and graphics, fees and expenses of any consultants engaged in connection with presentations with the prior approval of the Company, and travel and lodging expenses of the representatives of the Company and any such consultants.   4. Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that:     4.1. In connection with the offer and sale of the Shares, the Dealer Manager will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, by the rules and regulations of the SEC promulgated thereunder or other federal regulations applicable to the Offering, the sale of Shares or its activities and by all applicable state securities laws and regulations, as from time to time in effect, and by this Agreement, including the obligation to deliver a copy of the Prospectus as required by the Securities Act, the Exchange Act or the rules and regulations promulgated under either. The Dealer Manager will not offer the Shares for sale in any jurisdiction unless and until it has been advised that the Shares are either registered in accordance with, or exempt from, the securities and other laws applicable thereto.     4.2. The Dealer Manager will make no representations concerning the Offering except as set forth in the Prospectus.     4.3. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable Federal or state securities laws.   5. Obligations and Compensation of Dealer Manager.     5.1. The Company hereby appoints the Dealer Manager as its agent and principal distributor during the Offering Period (as defined in Section 5.3) for the purpose of finding, on a best-efforts basis, purchasers for the Shares for cash through the Dealers, all of whom shall be members of FINRA. The Dealer Manager may also arrange for the sale of Shares for cash directly to its own clients and customers at the public offering price and subject to the terms and conditions stated in the Prospectus. The Dealer Manager hereby accepts such agency and distributorship and   - 6 -   agrees to use its best efforts to find purchasers for the Shares on said terms and conditions, commencing as soon as practicable.     5.2. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement, among UMB Bank N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer and sale of the Shares other than by acknowledgement that it has agreed to serve as escrow agent.     5.3. The “Offering Period” shall mean that period commencing on the date hereof through the date that the Offering is terminated as provided in Section 11 hereof, except that the Dealer Manager and the Dealers shall suspend or terminate offering of the Shares upon request of the Company at any time and shall resume offering the Shares upon subsequent request of the Company. The Offering Period shall in all events terminate upon the sale of all of the Shares. Upon termination of the Offering Period, the Dealer Manager’s agency and this Agreement shall terminate without obligation on the part of the Dealer Manager or the Company except as set forth in this Agreement.     5.4. Except as may be provided in the “Plan of Distribution” section of the Prospectus, as compensation for the services rendered by the Dealer Manager, the Company agrees that it will pay to the Dealer Manager selling commissions plus a dealer manager fee as follows:        Selling Commissions per Share   Distribution Channel    Primary Offering     DRP   Dealers    7.00 %    0.00 %  Advisers affiliated with a Dealer    0.00 %    0.00 %  fiduciaries    0.00 %    0.00 %       Dealer Manager Fee per Share   Distribution Channel    Primary Offering     DRP   Dealer    2.50 %    0.00 %     2.50 %    0.00 %  fiduciaries    1.50 %    0.00 %    - 7 - Shareholders purchasing through advisers affiliated with a dealer, through advisers not affiliated with a dealer, or through banks acting as trustees or fiduciaries are referred to in this agreement as “Adviser Affiliated Shareholders.” Upon the terms set forth in the Prospectus, reduced selling commissions will be paid to the Dealer Manager and reduced per Share selling prices shall be recovered on large transactions involving Primary Offering Shares in accordance with the following table, which may be amended and supplemented by the Prospectus:   Shares Purchased in the Transaction    Commission Rate     Price per Share —      20,000    7.0 %    $ 25.00 20,001    40,000    6.0 %    $ 24.75 40,001    80,000    5.0 %    $ 24.50 80,001    120,000    4.0 %    $ 24.25 120,001    160,000    3.0 %    $ 24.00 160,001    200,000    2.0 %    $ 23.75 200,001    and up    1.0 %    $ 23.50 The reduced selling price per Share and selling commissions will apply to the incremental Shares falling within the indicated range only. All commission rates will be calculated assuming a $25.00 price per Share. The discounts noted in the above table will be applied on a transaction-by-transaction basis and in a progressive fashion. By way of example, an investment transaction of $1,249,996 would pay (i) 7% commission on the first 20,000 Shares for $500,000, (ii) 6% on the next 20,000 Shares for $495,000, and (iii) 5% on the remaining 10,408 Shares for $254,996. The Company will also reimburse the Dealer Manager for all items of underwriter compensation referenced in the Prospectus to the extent the Prospectus indicates that they will be paid by the Company; provided that the Company’s reimbursement of such payments shall not cause total underwriting compensation to exceed 10% of gross proceeds from the sale of Shares in the primary offering, or cause total organization and offering expenses to exceed 15% of gross proceeds from the Offering. The Company will also reimburse the Dealer Manager for its reimbursement of the bona fide due diligence expenses of the Dealers and non-participating broker-dealers if supported by a detailed and itemized invoice, subject to the cap on organization and offering expenses described above. In addition, as described in the Prospectus, the Dealer Manager may sell Primary Offering Shares to Dealers, their retirement plans, their representatives and the family members, IRAs and the qualified plans of   - 8 - their representatives at a purchase price of $23.25 per Share, reflecting that selling commissions in the amount of $1.75 per Share will not be payable in consideration of the services rendered by such Dealers and representatives in the Offering. For purposes of this discount, a family member includes such person’s spouse, parent, child, sibling, mother- or father-in-law, son- or daughter-in law or brother- or sister-in-law. As described in the Prospectus, the Dealer Manager may sell Primary Offering Shares to directors, officers and employees of the Company or the Advisor or one of the affiliates of the Advisor at a discount. The purchase price for Primary Offering Shares under this program will be $22.63 per Share, reflecting that neither selling commissions nor the dealer manager fee will be payable in connection with such Sales. Notwithstanding the foregoing, no commissions, payments or amounts whatsoever will be paid to the Dealer Manager under this Section 5.4 unless or until the Company raises $2.5 million in the Offering from persons not affiliated with the Company or its sponsor (the “Minimum Offering”). Until the Minimum Offering is reached, investments will be held in escrow. Until $166.7 million (the “Pennsylvania Minimum”) has been raised in the Offering from persons not affiliated with the Company or its sponsor, investments from Pennsylvania investors will be held in a separate escrow and no commissions, payments or amounts whatsoever will be paid thereon to the Dealer Manger under this Section 5.4 unless and until the Pennsylvania Minimum has been reached, and then only with respect to such investments from Pennsylvania investors as are released to the Company from such escrow. If the Minimum Offering is not reached within the time period specified in the Prospectus, investments will be returned to the investors in accordance with the Prospectus. If the Pennsylvania Minimum is not obtained within the time period specified in the Prospectus, the investments from Pennsylvania investors will be returned or held for subsequent escrow periods in accordance with the Prospectus. The Company will not be liable or responsible to any Dealer for direct payment of commissions to such Dealer, it being the sole and exclusive responsibility of the Dealer Manager for payment of commissions to Dealers. Notwithstanding the above, at its discretion, the Company may act as agent of the Dealer Manager by making direct payment of commissions to such Dealers without incurring any liability therefor.     5.5. Notwithstanding anything to the contrary contained herein, in the event that the Company pays any commission to the Dealer Manager for sale by a Dealer of one or more Shares and the subscription is rescinded as to one or more of the Shares covered by such subscription, the Company shall   - 9 -   decrease the next payment of commissions or other compensation otherwise payable to the Dealer Manager by the Company under this Agreement by an amount equal to the commission rate established in Section 5.4 of this Agreement, multiplied by the number of Shares as to which the subscription is rescinded. In the event that no payment of commissions or other compensation is due to the Dealer Manager after such withdrawal occurs, the Dealer Manager shall pay the amount specified in the preceding sentence to the Company within ten (10) days following receipt of notice by the Dealer Manager from the Company stating the amount owed as a result of rescinded subscriptions.     5.6. Notwithstanding anything else herein to the contrary, Dealer Manager agrees that it will not sell any Shares through the DRP to any Adviser Affiliated Stockholder while such stockholder may still purchase Shares in the primary offering for a price less than the price available under the DRP. After the primary offering closes, or if at any time the shares offered under the DRP are offered at a price per share less than that offered pursuant to this agreement to Adviser Affiliated Stockholders, the Dealer Manager may sell Shares through the DRP to an Adviser Affiliated Stockholder at the then applicable DRP purchase price.   6. Indemnification.     6.1. The Company will indemnify and hold harmless the Dealers and (to the extent permitted by the Company’s charter) the Dealer Manager, their officers and directors and each person, if any, who controls such Dealer or Dealer Manager within the meaning of Section 15 of the Securities Act (the “Indemnified Persons”) from and against any losses, claims, damages or liabilities (“Losses”), joint or several, to which such Indemnified Persons may become subject, under the Securities Act or otherwise, insofar as such Losses (or actions in respect thereof) arise out of or are based upon (a) any untrue statement or alleged untrue statement of a material fact contained (i) in the Registration Statement or any post-effective amendment thereto or in the Prospectus or (ii) in any blue sky application or other document executed by the Company or on its behalf specifically for the purpose of qualifying any or all of the Shares for sale under the securities laws of any jurisdiction or based upon written information furnished by the Company under the securities laws thereof (any such application, document or information being hereinafter called a “Blue Sky Application”), or (b) the omission or alleged omission to state in the Registration Statement (including the Prospectus as a part thereof) or any post-effective amendment thereto or in any Blue Sky Application a material fact misleading, or (c) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, if used prior to the effective date of the Registration   - 10 -   Statement, or in the Prospectus or the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to made, not misleading. The Company will reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person, in connection with investigating or defending such Loss. Notwithstanding the foregoing provisions of this Section 6.1, the Company will not be liable in any such case to the extent that any such Loss or expense arises out of or is based omission made in reliance upon and in conformity with written information furnished (x) to the Company by the Dealer Manager or (y) to the Company or the Dealer Manager by or on behalf of any Dealer specifically for use in the preparation of the Registration Statement or any such post-effective amendment thereto, any such Blue Sky Application or any such Preliminary Prospectus or the Prospectus, and, further, the Company will not be liable in any such case if it is determined that such Dealer or the Dealer Manager was at fault in connection with the Loss, expense or action. Notwithstanding foregoing, the Company shall not indemnify or hold harmless an Indemnified Person for any Losses or expenses arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following conditions are met: (a) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular Indemnified Person, (b) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular Indemnified Person and (c) a court of competent jurisdiction approves a settlement of the claims against a particular Indemnified Person and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Securities and Exchange Commission and of the published position of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws.     6.2. The Dealer Manager will indemnify and hold harmless the Company, each director of the Company (including any person named in the Registration Statement, with his consent, as about to become a director), each other person who has signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act (each a “Company Indemnitee”), from and against any Losses to which any of the Company Indemnitees may become subject, under the Securities Act or otherwise, insofar as such Losses (or actions in respect thereof) arise out of or are based upon (a) any untrue statement of a material fact contained (i) in the Registration Statement (including the Prospectus as a part thereof) or any post-effective amendment thereto or (ii) any Blue Sky Application, or (b) the omission to state in the   - 11 -   effective date of the Registration Statement, or in the Prospectus or the necessary in order to make the statements therein in the light of the circumstances under which they were made not misleading, in the case of each of clauses (a)-(c) to the extent, but only to the extent, that such untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Dealer Manager specifically for use with reference to the Dealer Manager in the preparation of the Registration Statement or any such post-effective amendments thereto or any such Blue Sky Application or any such Preliminary Prospectus or the Prospectus, or (d) any unauthorized use of sales materials or use of unauthorized verbal representations concerning the Shares by the Dealer Manager. The Dealer Manager will reimburse the aforesaid parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending such Loss, expense or action. This indemnity agreement will be in addition to any liability that the Dealer Manager may otherwise have.     6.3. Each Dealer severally will indemnify and hold harmless the Company, the Dealer Manager, each of their directors (including any person named in the Registration Statement, with his consent, as about to become a director), each other person who has signed the Registration Statement and each person, if any, who controls the Company and the Dealer Manager within the meaning of Section 15 of the Securities Act (each, a “Dealer Indemnified Person”) from and against any Losses to which a Dealer Indemnified Person may become subject, under the Securities Act or otherwise, insofar as such Losses (or actions in respect thereof) arise out of or are based upon (a) any untrue statement or alleged untrue statement of a material fact contained (i) in the Registration Statement (including the Prospectus as a part thereof) or any post-effective amendment thereto or (ii) in any Blue Sky Application, or (b) the omission or alleged omission to state in light of the circumstances under which they were made, not misleading, in the case of each of clauses (a)-(c) to the extent, but only to the extent, that such untrue   - 12 -   statement or alleged untrue statement or omission or alleged omission was made Company or the Dealer Manager by or on behalf of such Dealer specifically for use with reference to such Dealer in the preparation of the Registration Statement or any such post-effective amendments thereto or any such Blue Sky Application or any such Preliminary Prospectus, or (d) any unauthorized use of sales materials or use of unauthorized verbal representations concerning the Shares by such Dealer or Dealer’s representatives or agents in violation of Section VII of the Selected Dealer Agreement or otherwise. Each such Dealer will reimburse each Dealer Indemnified Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Loss, expense or action. This indemnity agreement will be in addition to any liability that such Dealer may otherwise have.     6.4. Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 6, notify in writing the indemnifying party of the commencement thereof. The failure of an indemnified party so to notify the indemnifying party will relieve the indemnifying party from any liability under this Section 6 as to the particular item for which indemnification is then being sought, but not from any other liability that it may have to any indemnified party. In case any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled, to the extent it may wish, jointly with any other indemnifying party similarly notified, to participate in the defense thereof, with separate counsel. Such participation shall not relieve such indemnifying party of the obligation to reimburse the indemnified party for reasonable legal and other expenses (subject to Section 6.5) incurred by such indemnified party in defending itself, except for such expenses incurred after the indemnifying party has deposited funds sufficient to effect the settlement, with prejudice, of the claim in respect of which indemnity is sought. Any such indemnifying party shall not be liable to any such indemnified party on account of any settlement of any claim or action effected without the consent of such indemnifying party. Any indemnified party shall not be bound to perform or refrain from performing any act pursuant to the terms of any settlement of any claim or action effected without the consent of such indemnified party.     6.5. The indemnifying party shall pay all legal fees and expenses of the indemnified party in the defense of such claims or actions; provided, however, that the indemnifying party shall not be obliged to pay legal expenses and fees to more than one law firm in connection with the defense of similar claims arising out of the same alleged acts or omissions giving rise to such claims notwithstanding that such actions or claims are   - 13 -   alleged or brought by one or more parties against more than one indemnified party. If such claims or actions are alleged or brought against more than one indemnified party, then the indemnifying party shall only be obliged to reimburse the expenses and fees of the one law firm that has been selected by a majority of the indemnified parties against which such action is finally brought; and in the event a majority of such indemnified parties is unable to agree on which law firm for which expenses or fees will be reimbursable by the indemnifying party, then payment shall be made to the first law firm of record representing an indemnified party against the action or claim. Such law firm shall be paid only to the extent of services performed by such law firm and no reimbursement shall be payable to such law firm on account of legal services performed by another law firm.     6.6. If the indemnity agreements contained in this Section 6 are for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any Losses or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such Losses and expenses incurred by such indemnified party, as incurred, (a) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Dealer Manager or Dealer on the other hand from the offering of the Shares in question or (b) if the allocation provided by clause (a) is not only the relative benefits referred to in clause (a) but also the relative fault of the Company on the one hand and of the Dealer Manager or Dealer on the other hand in connection with the statements or omissions which resulted in such Losses or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Dealer Manager or Dealer on the other hand in connection with the Offering shall be the Offering (before deducting expenses) received by the Company and the total selling commission and any dealer manager fee actually received by the Dealer Manager or Dealer, in each case as set forth on the cover of the Prospectus, bear to the aggregate public offering price of the Shares as set forth on such cover. The relative fault of the Company on the one hand and the Dealer Manager or Dealer on the other hand shall be determined by reference to, among other supplied by the Company or by the Dealer Manager or Dealer and the parties’ prevent such statement or omission. It is understood that it would not be just and equitable if contribution pursuant to this Section 6.6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to   - 14 - above in this Section 6.6. The aggregate amount of Losses and expenses incurred by an indemnified party and referred to above in this Section 6.6 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 6.6, the Dealer Manager or Dealer shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares sold by it exceeds the amount of any damages that such Dealer Manager or Dealer has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any For purposes of this Section 6.6, each director of the Company, each other person who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act shall have the same rights to contribution as the Company, and each person, if any, who controls the Dealer Manager or any Dealer within the meaning of Section 15 of the Securities Act shall have the same rights to contribution as such Dealer Manager or Dealer.   7. Survival of Provisions.     7.1. The respective agreements, representations and warranties of the Company and the Dealer Manager set forth in this Agreement shall remain operative and in full force and effect regardless of (a) any investigation made by or on behalf of the Dealer Manager or any Dealer or any person controlling the Dealer Manager or any Dealer or by or on behalf of the Company or any person controlling the Company, and (b) the acceptance of any payment for the Shares.     7.2. The obligations of the Company to pay the Dealer Manager pursuant to Section 5.4, Sections 6 through 10 and Section 12 shall survive the termination of this Agreement.   8. Applicable Law. This Agreement was executed and delivered in, and its validity, interpretation and construction shall be governed by, the laws of the State of Georgia; provided however, that causes of action for violations of federal or state securities laws shall not be governed by this Section.   - 15 - 9. Counterparts. This Agreement may be executed in any number of counterparts. Each counterpart, when executed and delivered, shall be an original contract, but all counterparts, when taken together, shall constitute one and the same Agreement.   10. Successors and Amendment.     10.1. This Agreement shall inure to the benefit of and be binding upon the Dealer Manager and the Company and their respective successors. Nothing in this Agreement is intended or shall be construed to give to any other person any right, remedy or claim, except as otherwise specifically provided herein. This Agreement shall inure to the benefit of the Dealers to the extent set forth in Sections 1 and 4 hereof.     10.2. This Agreement may be amended by the written agreement of the Dealer Manager and the Company.   11. Term. Any party to this Agreement shall have the right to terminate this Agreement on 60 days’ written notice. If not sooner terminated, the Dealer Manager’s agency and this Agreement shall terminate upon termination of the Offering Period without obligation on the part of the Dealer Manager or the Company, except as set forth in this Agreement. In addition to any other obligations of the Dealer Manager and the Company that survive the expiration or termination of this Agreement, (a) the Company shall pay to the Dealer Manager all accrued amounts payable under Section 5.4 hereof at such time as such amounts become payable, and (b) the Dealer Manager shall promptly deliver to the Company all records and documents in its possession that relate to the Offering and that are not designated as “dealer” copies.   12. Confirmation. The Company hereby agrees and assumes the duty to confirm on its behalf and on behalf of Dealers and the Dealer Manager all orders for purchase of Shares accepted by the Company. Such confirmations will comply with the rules of the SEC and FINRA and will comply with applicable laws of such other jurisdictions to the extent the Company is advised of such laws in writing by the Dealer Manager.   13. Suitability of Investors. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualifications set forth in the Prospectus or in any suitability letter or memorandum sent to it by the Company and will only make offers to persons in the states in which it is advised in writing that the Shares are qualified for sale or that such qualification is not required. In offering Shares, the Dealer Manager will, and in its agreements with Dealers, the Dealer Manager will, require that the Dealer comply with the provisions of all applicable rules and regulations relating to suitability of investors, including without limitation, the provisions of Article III.C. of the Statement of Policy Regarding Real Estate Investment Trusts of the North American Securities Administrators Association,   - 16 -   Inc. (the “NASAA Guidelines”). In making the determinations as to suitability required by the NASAA Guidelines, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the maintenance of records required by the NASAA Guidelines, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence.   14. Submission of Orders.     14.1. Those persons who purchase Shares will be instructed by the Dealer Manager or the Dealer to make their checks payable to “UMB Bank N.A., as escrow agent for Wells Core Office Income REIT, Inc.” or, after the Minimum Offering has been achieved, to the Company, except with respect to Pennsylvania investors. Checks from Pennsylvania investors must be made payable to “UMB Bank N.A., as escrow agent for Wells Core Office Income REIT, Inc.” until the Pennsylvania Minimum has been achieved. The Dealer Manager and any Dealer receiving a check not conforming to the foregoing instructions shall return such check directly to such subscriber not later than the end of the next business day following its receipt. Checks received by the Dealer Manager or Dealer which conform to the foregoing instructions shall be transmitted for deposit pursuant to one of the methods described in this Section 14.     14.2. Where, pursuant to a Dealer’s internal supervisory procedures, internal supervisory review is conducted at the same location at which subscription documents and checks are received from subscribers, checks will be transmitted by the end of the next business day following receipt by the Dealer for deposit to the escrow agent for the Company or to the Dealer Manager if the Dealer Manager is acting as processing broker-dealer or, after the Minimum Offering has been achieved, to the Company, except for investments from Pennsylvania investors. The Dealer will transmit checks from Pennsylvania investors for deposit to the escrow agent for the Company or to the Dealer Manager if the Dealer Manager is acting as processing broker-dealer or, after the Pennsylvania Minimum has been achieved, to the Company.     14.3. Where, pursuant to a Dealer’s internal supervisory procedures, final internal supervisory review is conducted at a different location, checks will be transmitted by the end of the next business day following receipt by the Dealer to the office of the Dealer conducting such final internal supervisory review (the “Final Review Offices”). The Final Review Office will in turn by the end of the next business day following receipt by the Final Review Office, transmit such checks for deposit to the escrow agent for the Company or to the Dealer Manager if the Dealer Manager is acting as processing broker-dealer or, after the Minimum Offering has   - 17 -   investors. The Final Review Office will transmit checks from Pennsylvania investors for deposit to the escrow agent for the Company or to the Dealer the Pennsylvania Minimum has been achieved, to the Company.     14.4. Where the Dealer Manager is involved in the distribution process, checks will be transmitted by the Dealer Manager for deposit to escrow agent for the Company or, after the Minimum Offering has been achieved, to the Company (except for investments from Pennsylvania investors) as soon as practicable but in any event by noon of the next business day following receipt by the Dealer Manager. The Dealer Manager will transmit checks from Pennsylvania investors for deposit to the escrow agent for the Company or, after the Pennsylvania Minimum has been achieved, to the Company. Checks of rejected potential investors will be promptly returned to such potential investors.     14.5. Notwithstanding the above, the Dealer Manager may authorize certain Dealers that are “$250,000 broker-dealers” to instruct their customers to make their checks for Shares subscribed for payable directly to the Dealer or authorize a debit from the customer’s account maintained with the Dealer for the amount of Shares subscribed for by the customer. In such case, the Dealer will collect the proceeds of the subscriber’s checks and debits and wire funds to the escrow agent or, if instructed by the Dealer Manager, issue a check for the aggregate amount of the subscription proceeds made payable to the order of the escrow agent, or if instructed by the Dealer Manager, made payable to “Wells Core Office Income REIT, Inc.” The procedures for the transmittal of checks and wiring of funds of $250,000 broker dealers will be set forth in the agreements between the $250,000 broker dealer and the Dealer Manager.   - 18 - If the foregoing correctly sets forth our understanding, please indicate your acceptance thereof in the space provided below for that purpose, whereupon this letter and your acceptance shall constitute a binding agreement between us as of   Very truly yours, WELLS CORE OFFICE INCOME REIT, INC. By:   /s/ Douglas P. Williams   Douglas P. Williams   Executive Vice President Accepted and agreed as of the   WELLS INVESTMENT SECURITIES, INC. By:   /s/ John F. Kleinsteuber   John F. Kleinsteuber   President   - 19 - Exhibit A FORM OF SELECTED DEALER AGREEMENT Ladies and Gentlemen: Wells Investment Securities, Inc., as the dealer manager (“Dealer Manager”) for Wells Core Office Income REIT, Inc. (the “Company”), a Maryland corporation, invites you (the “Dealer”) to participate in the distribution of shares of common stock of the Company subject to the following terms. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Dealer Manager Agreement.     I. Dealer Manager Agreement The Dealer Manager and the Company have entered into that certain Dealer Manager Agreement dated June 10, 2010, in the form attached hereto as Exhibit “A.” By your acceptance of this Agreement, you will become one of the Dealers referred to in such Dealer Manager Agreement between the Company and the Dealer Manager and will be entitled and subject to the indemnification provisions contained in such Dealer Manager Agreement, including specifically the provisions of such Dealer Manager Agreement (Section 6.3) wherein each Dealer severally agrees to indemnify and hold harmless the Company, the Dealer Manager and each officer and director thereof, and each person, if any, who controls the Company and the Dealer Manager within the meaning of the Securities Act of 1933, as amended. Dealer hereby agrees to use its best efforts to sell the Shares for cash on the terms and conditions stated in the Prospectus. Nothing in this Agreement shall be deemed or construed to make Dealer an employee, agent, representative or partner of the Dealer Manager or of the Company, and Dealer is not authorized to act for the Dealer Manager or the Company or to make any representations on their behalf except as set forth in the Prospectus and such other printed information furnished to Dealer by the Dealer Manager or the Company to supplement the Prospectus (“supplemental information”).     II. Submission of Orders Those persons who purchase Shares will be instructed by the Dealer to make their checks payable to “UMB Bank N.A., as escrow agent for Wells Core Office Income REIT, Inc.” or, after the Minimum Offering has been achieved, to the Company, except with respect to Pennsylvania investors. Checks from Pennsylvania investors must be made payable to “UMB Bank N.A., as escrow agent for Wells Core Office Income REIT, Inc.” until the Pennsylvania Minimum has been achieved. Any Dealer receiving a check not conforming to the foregoing instructions shall return such check directly to such subscriber not later than the end of the next business day following its receipt. Checks   A-1 received by the Dealer which conform to the foregoing instructions shall be transmitted for deposit pursuant to one of the following methods: Where, pursuant to the Dealer’s internal supervisory procedures, internal Where, pursuant to the Dealer’s internal supervisory procedures, final internal (the “Final Review Office”). The Final Review Office will in turn by the end of the Minimum Offering has been achieved, to the Company, except for investments from Pennsylvania investors. The Final Review Office will transmit checks from Pennsylvania investors for deposit to the escrow agent for the Company or to the Dealer Manager if the Dealer Manager is acting as processing broker-dealer or, after the Pennsylvania Minimum has been achieved, to the Company. The Dealer agrees to be bound by the terms of the Escrow Agreement, among UMB Bank N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer further agrees that it will not represent or imply that UMB Bank N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer and sale of the Shares other than by acknowledgement that it has agreed to serve as escrow agent.     III. Pricing Except as described in the Prospectus or with respect to volume discounts as described below, Dealer agrees to sell the Shares for a per Share cash price as follows:   Distribution Channel    Primary Offerings    DRP Dealer    $ 25.00    $ 23.75 Adviser affiliated with Dealer    $ 23.25    $ 23.75   A-2 The Primary Offering Shares shall be sold at reduced prices as follows, which may be amended and supplemented by the Prospectus:   Shares Purchased in the Transaction    Price per Share —      20,000    $ 25.00 20,001    40,000    $ 24.75 40,001    80,000    $ 24.50 80,001    120,000    $ 24.25 120,001    160,000    $ 24.00 160,001    200,000    $ 23.75 200,001    and up    $ 23.50 example, an investment transaction of $1,249,996 would purchase (i) the first 20,000 Shares for $500,000, (ii) the next 20,000 Shares for $495,000, and (iii) the remaining 10,408 Shares for $254,996.     IV. Dealers’ Commissions Except for discounts described in or as otherwise provided in the “Plan of Distribution” section of the Prospectus, the Dealer’s selling commission applicable to the total public offering price of Shares sold by Dealer which it is authorized to sell hereunder is as follows:   Distribution Channel    Primary Offering     DRP   Dealers    7.00 %    0.00 %  Advisers affiliated with Dealers    0.00 %    0.00 %  The preceding commissions (for the Dealer distribution channel) shall be adjusted for sales under the volume discount program discussed above in accordance with the following table, which may be amended or supplemented by the Prospectus:   Shares Purchased in the Transaction    Commission Rate   —      20,000    7.0 %  20,001    40,000    6.0 %  40,001    80,000    5.0 %  80,001    120,000    4.0 %  120,001    160,000    3.0 %  160,001    200,000    2.0 %  200,001    and up    1.0 %  All commission rates will be calculated assuming a $25.00 price per Primary Offering Share sold by such Dealer and accepted and confirmed by the Company, which commission will be paid by the Dealer Manager. For these purposes, a “sale” shall occur if and only if a transaction has closed with a securities purchaser pursuant to all applicable offering and subscription documents and the Company has thereafter   A-3 distributed the commission to the Dealer Manager in connection with such transaction. The Dealer affirms that the Dealer Manager’s liability for commissions payable is limited solely to the proceeds of commissions receivable associated therewith, and the Dealer hereby waives any and all rights to receive payment of commissions due until such time as the Dealer Manager is in receipt of the commission from the Company. In addition, as set forth in the Prospectus, the Dealer Manager may, in its sole discretion, reallow a portion of the dealer manager fee earned on the proceeds raised by the Dealer. This reallowance would be in the form of a marketing fee, which would be the subject of a separate agreement, and may also include a reimbursement of certain of the Dealer’s distribution-related costs, such as the costs and expenses of attending educational conferences sponsored by the Dealer Manager and direct attendance fees the Company may pay for employees of the Dealer Manager or its affiliates to attend a seminar sponsored by the Dealer. Except as otherwise provided in the marketing fee agreement, and subject to the limitations set forth in the Dealer Manager Agreement, the Dealer Manager may also reimburse the reasonable bona fide due diligence expenses of the Dealer if such expenses are supported by a detailed and itemized invoice. The parties hereby agree that the foregoing commission is not in excess of the usual and customary distributors’ or sellers’ commission received in the sale of securities similar to the Shares, that Dealer’s interest in the offering is limited to such commission from the Dealer Manager and Dealer’s indemnity referred to in Section 6 of the Dealer Manager Agreement, and that the Company is not liable or responsible for the direct payment of such commission to the Dealer.     V. Payment Payments of selling commissions or any reallowance of a portion of the dealer manager fee will be made by the Dealer Manager (or by the Company as provided in the Dealer Manager Agreement) to Dealer within 30 days of the receipt by the Dealer Manager of the gross commission payments from the Company. Dealer acknowledges that if the Company pays selling commissions to the Dealer Manager, Company is relieved of any obligation for selling commissions to the Dealer. Company may rely on and use the preceding acknowledgment as a defense against any claim by Dealer for selling commissions Company pays to Dealer Manager but that Dealer Manager fails to remit to Dealer.     VI. Right to Reject Orders or Cancel Sales All orders, whether initial or additional, are subject to acceptance by and shall only become effective upon confirmation by the Company, which reserves the right to reject any order. Orders not accompanied by a Subscription Agreement and the required check in payment for the Shares may be rejected. Issuance and delivery of the Shares will be made only after actual receipt of payment therefor. If any check is not paid upon presentment, or if the Company is not in actual receipt of clearinghouse funds or cash, certified or cashier’s check or the equivalent in payment for the Shares within 15 days of   A-4 sale, the Company reserves the right to cancel the sale without notice. In the event an order is rejected, canceled or rescinded for any reason, the Dealer agrees to return to the Dealer Manager any commission theretofore paid with respect to such order.     VII. Prospectus and Supplemental Information Dealer is not authorized or permitted to give, and will not give, any information or make any representation concerning the Shares except as set forth in the Prospectus and supplemental information. The Dealer Manager will supply Dealer with reasonable quantities of the Prospectus, as well as any supplemental information, for delivery to investors, and Dealer will deliver a copy of the Prospectus as required by the Securities Act, the Exchange Act, and the rules and regulations promulgated under both. The Dealer agrees that it will not send or give any supplemental information to an investor unless it has previously sent or given a Prospectus to that investor or has simultaneously sent or given a Prospectus with such supplemental information. Dealer agrees that it will not show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Dealer Manager and marked “dealer only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public. Dealer agrees that it will not use in connection with the offer or sale of Shares any material or writing that relates to another company supplied to it by the Company or the Dealer Manager bearing a legend that states that such material may not be used in connection with the offer or sale of any securities of the Company. Dealer further agrees that it will not use in connection with the offer or sale of Shares any materials or writings that have not been previously approved by the Dealer Manager. Each Dealer agrees, if the Dealer Manager so requests, to furnish a copy of any revised Preliminary Prospectus to each person to whom it has furnished a copy of any previous Preliminary Prospectus, and further agrees that it will itself mail or otherwise deliver all preliminary and final Prospectuses required for compliance with the provisions of Rule 15c2-8 under the Exchange Act. Regardless of the termination of this Agreement, Dealer will deliver a Prospectus (as amended and supplemented) in transactions in the Shares for a period of 90 days from the effective date of the Registration Statement or such other period as may be required by the Exchange Act or the rules and regulations thereunder. On becoming a Dealer, and in offering and selling Shares, Dealer agrees to comply with all the applicable requirements under the Securities Act and the Exchange Act.     VIII. License and Association Membership Dealer’s acceptance of this Agreement constitutes a representation to the Company and the Dealer Manager that Dealer is a properly registered or licensed broker-dealer, duly authorized to sell Shares under Federal and state securities laws and regulations and in all states where it offers or sells Shares, and that it is a member in good standing of FINRA. This Agreement shall automatically terminate if the Dealer ceases to be a member in good standing of such association. Dealer agrees to notify the Dealer Manager immediately if Dealer ceases to be a member in good standing. The Dealer Manager hereby agrees to abide by all applicable rules of FINRA and NASD Conduct   A-5 Rules, including without limitation Rules 2730, 2740, 2420 and 2750 of the NASD Conduct Rules.     IX. Anti-Money Laundering Compliance Programs Company and the Dealer Manager that Dealer has established and implemented anti-money laundering compliance programs in accordance with applicable laws and regulations, including federal and state securities laws, Executive Order 13224 – Executive Order on Terrorist Financing Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism, the USA Patriot Act of 2001, including Section 352 of the Money Laundering Abatement Act, and applicable rules of FINRA, including NASD Conduct Rule 3011, which programs are reasonably expected to detect and cause the reporting of suspicious transactions in connection with the sale of Shares of the Company. The Dealer hereby agrees to certify annually to the Dealer Manager that it has implemented an anti-money laundering compliance program and completes due diligence on correspondent accounts as required by Section 312 of the Money Laundering Abatement Act in connection with the selling of the Shares.     X. Limitation of Offer Dealer will offer Shares only to persons who meet the financial qualifications set forth in the Prospectus or in any suitability letter or memorandum sent to it by the Company or the Dealer Manager and will only make offers to persons in the states in which it is advised in writing that the Shares are qualified for sale or that such qualification is not required. In offering Shares, Dealer will comply with the provisions of all applicable rules of FINRA, including FINRA Rule 2310 and the NASD Conduct Rules, as well as all other applicable rules and regulations relating to suitability of investors, including without limitation, the provisions of Article III.C. of the Statement of Policy Regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. Dealer shall not purchase any Shares for a discretionary account without obtaining the prior written approval of Dealer’s customer and his or her signature on a subscription agreement.     XI. Termination Dealer will suspend or terminate its offer and sale of Shares upon the request of the Company or the Dealer Manager at any time and will resume its offer and sale of Shares hereunder upon subsequent request of the Company or the Dealer Manager. Any party may terminate this Agreement by written notice. Such termination shall be effective 48 hours after such notice is given. This Agreement and the exhibits hereto are the entire agreement of the parties and supersede all prior agreements, if any, relating to the subject matter hereof   A-6 This Agreement may be amended at any time by the Dealer Manager by written notice to the Dealer, and any such amendment shall be deemed accepted by Dealer upon placing an order for sale of Shares after he has received such notice.     XII. Privacy Laws The Dealer Manager and Dealer (each referred to individually in this section as “party”) agree as follows:     A. Each party agrees to abide by and comply in all respects with (a) the privacy standards and requirements of the Gramm-Leach-Bliley Act of 1999 (“GLBA”) and applicable regulations promulgated thereunder, (b) the privacy standards and requirements of any other applicable federal or state law, including the Fair Credit Reporting Act (“FCRA”) and (c) its own internal privacy policies and procedures, each as may be amended from time to time.     B. Dealer shall not disclose nonpublic personal information (as defined under the GLBA) of all customers who have opted out of such disclosures, except to service providers (when necessary and as permitted under the GLBA) or as otherwise required by applicable law.     C. Except as expressly permitted under the FCRA, Dealer shall not disclose any information that would be considered a “consumer report” under the FCRA.     D. Dealer shall be responsible for determining which customers have opted out of the disclosure of nonpublic personal information by periodically reviewing and, if necessary, retrieving a list of such customers (the “List”) to identify customers that have exercised their opt-out rights. In the event either party expects to use or disclose nonpublic personal information of any customer for purposes other than servicing the customer, or as otherwise required by applicable law, that party must first consult the List to determine whether the affected customer has exercised his or her opt-out rights. Each party understands that it is prohibited from using or disclosing any nonpublic personal information of any customer that is identified on the List as having opted out of such disclosures.     XIII. Notice All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered: (i) when delivered personally or by commercial messenger; (ii) one business day following deposit with a recognized overnight courier service, provided such deposit occurs prior to the deadline imposed by   A-7 such service for overnight delivery; (iii) when transmitted, if sent by facsimile copy, provided confirmation of receipt is received by sender and such notice is sent by an additional method provided hereunder, in each case above provided such communication is addressed to the intended recipient thereof as set forth below: If to the Dealer Manager:     Wells Investment Securities, Inc.           6200 The Corners Parkway, Suite 250           Norcross, Georgia 30092-3365           Attention: Kirk A. Montgomery           Facsimile No. (770) 243-8187 If to a Dealer, to the address or facsimile number and address specified by Dealer on the signature page hereto. XIV. Attorney’s Fees and Applicable Law In any action to enforce the provisions of this Agreement or to secure damages for its breach, the prevailing party shall recover its costs and reasonable attorney’s fees. This Agreement shall be construed under the laws of the State of Georgia and shall take effect when signed by Dealer and countersigned by the Dealer Manager.       THE DEALER MANAGER:     WELLS INVESTMENT SECURITIES, INC. Attest:       /s/ Kirk A. Montgomery     By:   /s/ Thomas E. Larkin Kirk A. Montgomery       Thomas E. Larkin Secretary       President   A-8 We have read the foregoing Agreement and we hereby accept and agree to the terms and conditions therein set forth. We hereby represent that the list below of jurisdictions in which we are registered or licensed as a broker or dealer and are fully authorized to sell securities is true and correct, and we agree to advise you of any change in such list during the term of this Agreement.   1. Identity of Dealer:   Name:                                                                                                                                                                                                                                                                          Type of entity:                                                                                                                                                                                                                                                        (to be completed by Dealer) (corporation, partnership or proprietorship)   Organized in the State of:                                                                                                                                                                                                                                        (to be completed by Dealer)            (State)   Licensed as broker-dealer in the following States:                                                                                                                                                                                                                           (to be completed by Dealer)   Tax I.D. #:                                                                                                                                                                                                                                                                 2. Person to receive notice pursuant to Section XIII.   Name:                                                                                                                                                                                                                                                                          Company:                                                                                                                                                                                                                                                                      Address:                                                                                                                                                                                                                                                                          City, State and Zip Code:                                                                                                                                                                                                                                                Telephone No.:(            )                                                                                                                                                                                                                                           Telefax No.:(            )                                                                                                                                                                                                                                                 e-mail address:                                                                                                                                                                                                                                                           AGREED TO AND ACCEPTED BY THE DEALER:                                                                                                   Date                                                                                       (Dealer’s Firm Name)       By:                                                                                                     Title:                                                                         A-9 EXHIBIT B TO THE WELLLS CORE OFFICE INCOMET REIT, INC. SELECTED DEALER AGREEMENT ESCROW AGREEMENT

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 15, 2010 Structured Products Corp. on behalf of CorTS Trust for General Electric Capital Corporation Notes (Exact name of registrant as specified in its charter) Delaware 001-31580 13-3692801 (State or other jurisdiction of incorporation or organization) (Commission File Number) (IRS Employer Identification Number) 388 Greenwich Street New York, New York (212) 816-7496 (Address of principal executive offices) (Zip Code) (Registrant's telephone number including area code) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: ¨ Written communications pursuant to Rule 425 under the Securities Act (17CFR 230.425) ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17CFR 240.13e-4(c)) 1 Section 8 - Other Events Item 8.01 Other Events. This current report on Form 8-K relates to a distribution made to holders of the Certificates issued by the CorTS Trust for General Electric Capital Corporation Notes. The issuer of the underlying securities, or guarantor thereof, or successor thereto, as applicable, is subject to the information reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act").Periodic reports and other information required to be filed pursuant to the Exchange Act, by the issuer of the underlying securities, or guarantor thereof, or successor thereto, as applicable, may be inspected and copied at the public reference facilities maintained by the Securities and Exchange Commission (the "Commission") at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission also maintains a site on the World Wide Web at "http://www.sec.gov" at which users can view and download copies of reports, proxy and information statements and other information filed electronically through the Electronic Data Gathering, Analysis and Retrieval system.Neither Structured Products Corp. nor the trustee has participated in the preparation of such reporting documents, or made any due diligence investigation with respect to the information provided therein. Neither Structured Products Corp. nor the trustee has verified the accuracy or completeness of such documents or reports. There can be no assurance that events affecting the issuer of the underlying securities, or guarantor thereof, or successor thereto, as applicable, or the underlying securities have not occurred or have not yet been publicly disclosed which would affect the accuracy or completeness of the publicly available documents described above. Underlying Securities Issuer(s) or Guarantor, or successor thereto Exchange Act File Number General Electric Capital Corporation 001-06461 Section 9 – Financial Statements and Exhibits Item 9.01 Financial Statements and Exhibits. (c) Exhibits: 1. Trustee’s Report with respect to the September 15, 2010 Distribution Date for the CorTS Trust for General Electric Capital Corporation Notes 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. By:/s/ Stanley Louie Name:Stanley Louie Title:Vice President, Finance Officer September 15, 2010 3 EXHIBIT INDEX Exhibit Page 1 Trustee’s Report with respect to the September 15, 2010 Distribution Date for the CorTS Trust for General Electric Capital Corporation Notes 5 4 Exhibit 1 To the Holders of: CorTS Trust for General Electric Capital Corporation Notes 6.00% Corporate-Backed Trust Securities (CorTS) Certificates Class A *CUSIP:22082X201 Class B *CUSIP:22082XAA0 U.S. Bank Trust National Association, as Trustee for the CorTS Trust for General Electric Capital Corporation Notes, hereby gives notice with respect to the Distribution Date of September 15, 2010 (the "Distribution Date") as follows: 1. The amount of the distribution payable to the Certificateholders on the Distribution Date allocable to principal and premium, if any, and interest, expressed as a dollar amount per $25 Class A Certificate and per $1,000 Notional Amount of Class B Certificate, is as set forth below: Class Principal Interest Total Distribution A $ 0.000000 $ 0.750000 $ 0.750000 B $ 0.000000 $ 3.750000 $ 3.750000 2. The amount of aggregate interest due and not paid as of the Distribution Date is $0.000000. 3. No fees have been paid to the Trustee or any other party from the proceeds of the Term Assets. 4. $200,000,000 aggregate principal amount of General Electric Capital Corporation 6.75% Global Medium-Term Notes due March 15, 2032 (the "Term Assets") are held for the above trust. 5. At the close of business on the Distribution Date, 8,000,000 Class A Certificates representing $200,000,000 Aggregate Certificate Principal Balance and $200,000,000 Notional Amount of Class B were outstanding. 6. The current rating of the Term Assets is not provided in this report.Ratings can be obtained from Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., by calling 212-438-2400 and from Moody's Investors Service, Inc. by calling 212-553-0377. U.S. Bank Trust National Association, as Trustee *The Trustee shall not be held responsible for the selection or use of the CUSIP number nor is any representation made as to its correctness.It is included for the convenience of the Holders. 5

ITEMID: 001-61931 LANGUAGEISOCODE: ENG RESPONDENT: HUN BRANCH: CHAMBER DATE: 2004 DOCNAME: CASE OF BALOGH v. HUNGARY IMPORTANCE: 2 CONCLUSION: Préliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;No violation of Art. 13;No violation of Art. 6-1;No violation of Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings TEXT: 8. The applicant was born in 1958 and lives in Miskolc, Hungary. He is of Roma ethnic origin. 9. On 9 August 1995 the applicant, accompanied by Ms B. and Mr S., was selling coal from a truck on a door-to-door basis in Orosháza. After an aborted transaction, some would-be purchasers reported to the local police that the three had left their yard without having returned their fuel vouchers. At about 5.45 p.m. two local police officers halted the applicant’s truck and instructed the applicant and his companions to report to the Orosháza Police Station. The applicant was interrogated there by police officers S. and K. 10. The applicant stated that during the interrogation one of the police officers repeatedly slapped him across the face and left ear while the other punched him on the shoulder. The officers demanded that he reveal where the stolen vouchers had been hidden. 11. On being released after two hours of interrogation, the applicant was met on the ground floor of the police station by Ms B. and Mr S., as well as by Mr B. and Mr M., both of whom were acquaintances of the applicant and his companions. The applicant stated that when he and his companions were leaving the police station, a police officer issued the following warning to them: “Tell the Miskolc gypsies that they had better not set foot in Orosháza”. 12. Having returned to his home in Miskolc on 11 August 1995, the applicant consulted Dr V., the local doctor, who advised him to report to the Ear, Nose and Throat Department of Diósgyőr Hospital. On 14 August 1995 Dr C. carried out an operation to reconstruct the applicant’s ear drum which had been damaged as a result of a traumatic perforation. On 16 August 1995 Dr C. reported the case to the police. 13. On 28 August 1995 the applicant was discharged from hospital. His medical report stated, without reference to any precise date, that he had sustained a traumatic perforation of the left tympanic membrane. This conclusion also figured in two further medical reports issued later by Dr C. on 25 August 1995 and by Dr V. on 29 September 1995. The applicant’s injury was described in a follow-up medical report dated 10 September 1997 as “low-to-medium-grade loss of sound perception” in the left ear. 14. On 25 September 1995 the Szeged Investigation Office informed the applicant that criminal proceedings had been opened against the police officers involved on the basis of information submitted by Dr C. on 16 August. The police officers were charged with the offences of “forced interrogation” and “ill-treatment committed in the course of official proceedings”. 15. The Investigation Office heard the applicant and several witnesses. Four persons were heard from the applicant’s side. Mr S. stated as follows: “[In the building of the police station] I met [the applicant] [...] whose face had a bluish colour in the area under his left ear and was somewhat swollen. I then asked him if they had hurt him. He answered that they had hurt him a little and pointed to the left side of his face saying that it was hurting there. He said that he had no hearing on that side.” Ms B. stated as follows: “[When the applicant was escorted down to the ground floor], it struck me that the left side of his face and his left ear were swollen. I thought that he had been beaten. I asked him about it, to which he only answered that he had been beaten a little. [...] I remember well that the left side of his face was red and I even saw the traces of fingers on it.” Mr M. stated as follows: “[When at last the applicant came down to the ground floor], it struck me immediately that his skin was reddish-bluish around his left ear and even underneath his neck. I had no doubt that his face was swollen as a result of a blow. I then asked him if they had hurt him, [...], he only answered: ‘A little’.” Mr B. stated as follows: [When the applicant was escorted down to the ground floor], it was apparent at once that the left side of his face and his left ear were red. It was obvious that he had been hit. Ms. B. even asked him if he had been hurt. He first answered in the negative. Then I asked him the same question. Then he answered: ‘A little’.” The Investigation Office also heard Dr V. and four police officers who had been on duty at the police station at the time of the applicant’s interrogation. The police witnesses denied any knowledge of ill-treatment having been inflicted on the applicant. The suspected police officers S. and K. consistently denied the applicant’s accusations when questioned on 15 November 1995. Police officer S. stated, inter alia, as follows: “I remember [the applicant] having said something of the sort that he was working for those persons as a lorry-driver [...] to set off debts incurred by his wife. [...] He was blaming [his companions] for forcing him to work a lot more than if he had been working for money; and he even mentioned to one of my colleagues that they would either leave him behind or beat him up on the way home because of this.” Police officer K. stated, inter alia, as follows: “After the interrogation police officer S. told me that [the persons interrogated] had also quarrelled amongst themselves, maybe they had not properly paid [the applicant], they had a dispute about money or something of the sort [...]” 16. On 16 November 1995 a medical expert appointed by the Investigation Office expressed the opinion that it could not be excluded that the applicant’s injury had been caused as alleged. However, in the expert’s opinion it could not be determined whether the injury in question had been caused to his ear before, during or after the applicant’s interrogation. 17. On 30 November 1995 the Investigation Office discontinued the criminal proceedings against police officers K. and S. for lack of any conclusive evidence. On 12 December 1995 the applicant filed a complaint against the discontinuation order. 18. On 24 January 1996 the Orosháza District Public Prosecutor’s Office ordered the investigation to be resumed and that confrontations be organised between the applicant and the police officers concerned and between various witnesses. It also ordered that further witnesses be heard. 19. In the framework of the resumed proceedings, the Csongrád County Investigation Office, on 1 March 1996, confronted the applicant with the suspected police officers as well as a third police officer who had been heard as a new witness. 20. On 6 March 1996 the Investigation Office discontinued the investigation. Relying on the testimonies given, on the one hand, by the applicant – who had consistently maintained his assertions during the proceedings – and by his companions and, on the other hand, by the police officers concerned, as well as on a confrontation involving all three of them, the Investigation Office found that although the applicant’s injuries might have been inflicted as alleged, it could not be excluded beyond all doubt that the injuries had been sustained before or after his interrogation. Since there was no direct witness to the alleged incident and the medical opinion in the case was not conclusive as to the time when the applicant’s injury had been inflicted, the Investigation Office was obliged to dismiss the applicant’s accusations as unsubstantiated and to discontinue the proceedings. The order drew the applicant’s attention to his right to file a complaint with the Public Prosecutor’s Office under section 148 §§ 1 and 4 of the Code of Criminal Procedure if he wished to challenge the decision to discontinue the case. This order was served on the applicant on 11 March 1996. The applicant did not file a complaint against this order. As of 1 August 1996 the applicant’s working capacity was declared to have diminished by 50% on account of asthma bronchiale and impaired hearing; the respective significance of these two factors was not specified. As a consequence, he was unable to have his lorry driver’s licence renewed or to obtain employment as a driver. 21. On 30 March 1998 the applicant claimed damages from the Ministry of the Interior. In reply, on 16 April 1998 he was informed by the competent Békés County Police Department that he was not eligible for compensation because he had failed to file a complaint against the discontinuation order of 6 March 1996 and thus to avail himself of an ordinary legal remedy, which was a precondition for establishing official liability. 22. On 22 April 1998 the applicant appointed the NEKI to take his case. A further medical opinion obtained by the NEKI on 19 August 1998 stated that a traumatic perforation of the tympanic membrane was usually caused by a slap on the ear. Although he did not have the earlier medical expert’s opinion at hand, the expert went on to qualify the applicant’s version of how he had sustained his injury as plausible. 23. Relying on this new evidence, the NEKI lodged on 25 August 1998 a complaint against the decision of 6 March 1996 with the Attorney General’s Office requesting that the criminal proceedings be re-opened in accordance with section 141 of the Code of Criminal Procedure. 24. On 5 October 1998 the Csongrád County Public Prosecutor’s Office finally dismissed this complaint. In its reasoned decision, the Public Prosecutor’s Office stated that: “[it] had thoroughly examined all the documents in the case file.” The decision mentioned that in the absence of coherent testimonies or a conclusive medical expert opinion it was impossible to prove either that the applicant’s injury had been caused during his police detention or that it had been inflicted by the suspected police officers. The Public Prosecutor’s Office noted the delay between the applicant’s interrogation on 9 August and his decision to seek medical help only on 11 August 1995. The decision stated that the new expert opinion did not contain any new facts which warranted the continuation of the investigation or the laying of charges against the suspects. The Public Prosecutor’s Office concluded that the case should be discontinued since it was impossible to prove the applicant’s allegations. The decision was served on the NEKI on 14 October 1998. 25. Section 55 § 1 of Act no. 1 of 1973 on the Code of Criminal Procedure (now repealed), as in force in the relevant period, provided: “A civil party is a victim who lays a civil-law claim for determination in criminal proceedings.” Section 141 of the Code of Criminal Procedure provided: “(1) The discontinuation of an investigation does not preclude that criminal proceedings in the same case may be later continued.” Section 148 of the Code of Criminal Procedure provided: “Remedy during investigation (1) Anyone aggrieved by the authority’s decision, measure or omission, is entitled to file a complaint. (4) Such a complaint may be lodged with the authority within a period of eight days from the date of the notification of the decision or from the date on which the complainant becomes aware of the measure or omission. (5) If the authority itself does not accept the complaint, it shall transfer the case file and its own statement concerning the complaint to the competent public prosecutor within twenty-four hours. The public prosecutor shall decide on the complaint within eight days. (6) A complaint may be rejected if it has been lodged outside the [above] time-limit or by an unauthorised person.” 26. Section 339 § 1 of Act no. 4 of 1959 on the Civil Code, as amended, provides: “Anyone who unlawfully causes damage to another person shall be obliged to pay compensation. He shall be exculpated if he proves that he proceeded in such manner as can generally be expected in the given situation.” Section 349 of the Civil Code provides: “(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage. (3) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities, unless otherwise provided by law.” 27. Section 3 § 5 of Act no. 3 of 1952 on the Code of Civil Procedure, as amended, provides: “Unless the law provides otherwise, in the civil procedure, the court shall not be bound, when taking evidence, by any formal rule or given method or application of specific means; it may freely use the parties’ submissions and may use any other evidence which is suitable for establishing the facts (...)” Section 4 § 1 of the Code of Civil Procedure provides: “When taking its decision, the court shall not be bound by a decision of another authority or by a disciplinary resolution, or the findings of fact contained therein.” Section 152 § 1 of the Code of Civil Procedure provides: “If the adjudication of a case depends on a preliminary matter on which a criminal court ... must decide, the [civil] court may suspend its proceedings until that procedure has been finally concluded (...)” VIOLATED_ARTICLES: 3 NON_VIOLATED_ARTICLES: 13 14 6 NON_VIOLATED_PARAGRAPHS: 6-1

EXHIBIT 10.1 THIRD AMENDMENT TO LEASE This Third Amendment to Lease (the “Agreement”) is entered into as of August 22, 2012, by and between WESTPORT OFFICE PARK, LLC, a California limited liability company (“Landlord”), and IMPERVA, INC., a Delaware corporation (“Tenant”), with respect to the following facts and circumstances: A. Landlord and Tenant are parties to that certain Lease Agreement dated February 12, 2008, as amended by a First Amendment to Lease dated February 12, 2010 and a Second Amendment to Lease (the “Second Amendment”) dated May 16, 2012 (the “Original Lease”), of certain premises (the “Premises”) more particularly described in the Original Lease. Capitalized terms used and not otherwise defined herein shall have the meanings given those terms in the Original Lease. As used herein, the term “Lease” means the Original Lease as amended by this Agreement. B. Landlord and Tenant desire to amend the Original Lease to correct the area of the Expansion Space and make other modifications on the terms and conditions provided herein. IT IS THEREFORE, agreed as follows: 1. The definition of the Expansion Space in Section 1 of the Second Amendment is hereby amended to reduce the area from 24,990 rentable square feet to 24,888 rentable square feet. 2. Tenant’s Building Percentage with respect to the 3200 Bridge Building specified in Section 2.2 of the Second Amendment is hereby decreased from 50.17% to 49.96%. 3. The rent schedule in Section 2.3 of the Section Amendment is hereby amended in its entirety to read as follows:   “Period*    Annual Base Rate      Monthly Base Rate   01 - 12    $ 746,640.00       $ 62,220.00    13 - 24    $ 770,532.48       $ 64,211.04    25 - 36    $ 794,424.96       $ 66,202.08    37 - 48    $ 818,317.44       $ 68,193.12    49 - New Expiration Date    $ 842,209.92       $ 70,184.16”    4. The Tenant Improvement Allowance specified in Section 3.1 of the Second Amendment is hereby decreased from $299,888.00 to $298,656.00.   -1- 5. Exhibit “B-2” to the Second Amendment is hereby deleted and replaced with the new Exhibit “B-2” attached hereto. 6. Landlord hereby represents and warrants to Tenant that it has dealt with no broker, finder or similar person in connection with this Agreement, and Tenant hereby represents and warrants to Landlord that it has dealt with no broker, finder or similar person in connection with this Agreement, other than Cassidy Turley (“Landlord’s Broker”) and CBRE, Inc. and Cassidy Turley (“Tenant’s Broker”). Landlord and Tenant shall each defend, indemnify and hold the other harmless with respect to all claims, causes of action, liabilities, losses, costs and expenses (including without limitation attorneys’ fees) with respect to any leasing commission or equivalent compensation alleged to be owing on account of the indemnifying party’s dealings with any real estate broker, agent, finder or similar person other than Landlord’s Broker and Tenant’s Broker. Nothing in this Agreement shall impose any obligation on Landlord to pay a commission or fee to any party. 7. As additional consideration for this Agreement, Tenant hereby certifies that Tenant’s representations and warranties in Section 53.1 of the Original Lease are true and correct. 8. Except as specifically provided herein, the terms and conditions of the Original Lease as amended hereby are confirmed and continue in full force and effect. This Agreement shall be binding on the heirs, administrators, successors and assigns (as the case may be) of the parties hereto. This Agreement and the attached exhibits, which are hereby incorporated into and made a part of this Agreement, set forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any Rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided to Tenant in connection with entering into the Original Lease, unless specifically set forth in this Agreement. Tenant agrees that neither Tenant nor its agents or any other parties acting on behalf of Tenant shall disclose any matters set forth in this Agreement or disseminate or distribute any information concerning the terms, details or conditions hereof to any person, firm or entity without obtaining the express written consent of Landlord. In the case of any inconsistency between the provisions of the Original Lease and this Agreement, the provisions of this Agreement shall govern and control. Submission of this Agreement by Landlord is not an offer to enter into this Agreement but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Agreement until Landlord has executed and delivered the same to Tenant. 9. Effective as of the date hereof, all references to the “Lease” shall refer to the Original Lease, as amended by this Agreement.   -2- IN WITNESS WHEREOF, this Agreement was executed as of the date first above written.   Landlord: WESTPORT OFFICE PARK, LLC, a California limited liability company By:   The Prudential Insurance Company of America, a New Jersey corporation, its member       By:   /s/ Kristin Paul     Kristin Paul, Vice President     [Printed Name and Title] Tenant: IMPERVA, INC., a Delaware corporation By:   /s/ Terry Schmid   Its:   Chief Financial Officer By:       Its:       -3- EXHIBIT B-2 EXPANSION SPACE [Layout of expansion space] Exhibit B-2

Title: Noisy tenants upstairs putting a restraining order on me for complaining to the property manager. What can I do? Question:This happened in California at November 1, 2015 I moved to a 2 story apartment complex last year and live below a family that is noisy. Everyday the little boy upstairs is jumping, running, and walking loudly. The mother of the boy stomps her feet too. The mother and son has also fought a few times before and the entire neighborhood could hear them screaming at each other and what sounds like throwing things. I've texted the property manager 3 times (1 in early Sept. and 2 in early Oct. and late Oct.) and he has gone upstairs to talk to them. They would be quiet for the rest of the night but the next day chaos would presume. Today I heard the little boy scream and heard loud stomping and big things being dropped. I called 911 and explained what happened, the cops showed up and talked to the family upstairs. About an hour later the mother and (quiet) daughter talks to the property manager and then knocks on my door. The mother told me that the cops said a neighbor called because a child was being abused (not what I said to 911, there should be a recording of this). She's hurt by those allegations and is wondering why I never knocked on her door to talk to her, I would rather have the property manager talk to her because I don't feel comfortable knocking on her door. Here's the biggest what the fuck of all: The mother said she will go to the court tomorrow and file a restraining order on me because I keep complaining. She said from 10 am to 10 pm they are allowed to do whatever they want Here's one reason why I called the cops: I had a conversation with the landlord a few days ago and she told me that if they keep being noisy I should call the cops. I'm guessing they are tired of knocking on their door too. She also mentioned the 10 pm rule (I'm guessing the landlord and my neighbor had a conversation about this before) and that just because it's the middle of the day doesn't mean they can stomp their feet and run around. I explained to her that they're stomping their feet and being loud almost every day. The daughter in contrast said that her grandma has heard loud music being played but admitted she doesn't know if it's from my house or the other neighbor downstairs. She says there's loud music in the afternoon but I am at work during those times. Without me complaining, the landlord has already talked to the family upstairs due to noise a few times. He would hear the boy running and he would knock on their door. I would really just like to have some peace and quiet when I am at home, weekends are pretty terrible as the little boy is always running around. What can I do? What should I do? Answer #1: &gt;What can I do? What should I do? Keep living your life. It's highly unlikely that any court will issue an ex parte order stating that you can't contact your landlord or the police about noise issues coming from the apartment above yours. And I'd suggest moving when your lease is up. Little boys run. A lot. And they don't get quieter with age. Answer #2: Legally you can't do much. They get to walk around, and yes, small children can be surprisingly loud running around. They are not legally obliged to keep quiet for you 24/7. On the other hand, they certainly can't do anything about you making complaints. A restraining order isn't going to do anything, except ensure that you can't complain to them in person. It cannot restrain you from calling the police (btw, use the non-emergency number in the future) or the landlord.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 6-K REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934 July 27, 2012 Commission File Number: 0-9266 AVINO SILVER & GOLD MINES LTD. Suite 900, 570 Granville Street, Vancouver, BC V6C 3P1 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F. þForm 20-Fo Form 40-F Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): o Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): o Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yeso No þ If "Yes" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): SUBMITTED HEREWITH Exhibits: Press Release datedJuly 27,2012 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, thereunto duly authorized. AVINO SILVER & GOLD MINES LTD. (Registrant) Date: July 27, 2012 By: /s/Dorothy Chin Dorothy Chin, Corporate Secretary 3

Title: Landlord sold house and wants me out by May 20th. Lease is not up until August 31st. [San Diego, CA] Question:She lives here and rents out the extra bedrooms. Besides myself and her, there are 2 other tenants that rent the other 2 bedrooms here. My lease has no language in it about a landlord terminating early or a sale clause. It was a lease signed to go from March 1st to August 31st. I am willing to move out early and asked her if I could leave by April 30th/May 1st and she said I could but would still be responsible for prorated rent for the month of May. Can I tell her to agree to my terms (the ability to leave early and not pay rent from the day I leave + the ability to stay past May 20th if I cannot find another rental) or force her to honor my lease all the way to August 31st? Does the fact she lives on the property as well affect certain tenants' rights? She has not offered any kind of monetary compensation to leave and wants to still charge me rent up to May 20th even if I leave before then + hold my security deposit for 21 days after move out. She claims selling the house is cause for terminating the lease. Edit: If I am legally allowed to ask for compensation for her breaking the lease - what is reasonable to ask for? Answer #1: She doesn't understand that the law now favors *you*. I find it interesting that she's breaking your lease early, yet still expects you to pay through May.Answer #2: Yes, you have no obligation to move out early. Set your terms and make her abide by them or tell her you're staying until your lease is up. You hold the power here Answer #3: &gt;Edit: If I am legally allowed to ask for compensation for her breaking the lease - what is reasonable to ask for? Have her make you an offer you can't refuse.Answer #4: Since you have a lease, and she has more than one lodger, you have the same rights as other CA tenants. There should be tenant rights groups in your area that can help. http://publichealth.lacounty.gov/eh/docs/housing/brochure/tenright.pdf https://sandiego.housingcollaborative.org/tenant-rights/?page=6Answer #5: \&gt; Edit: If I am legally allowed to ask for compensation for her breaking the lease \- what is reasonable to ask for? 2 months rent \+ deposit immediately is a good starting point.

Name: 2009/206/EC: Decision of the European Parliament of 22 April 2008 on the closure of the accounts of the European Centre for Disease Prevention and Control for the financial year 2006 Type: Decision Subject Matter: accounting; EU institutions and European civil service; budget Date Published: 2009-03-31 31.3.2009 EN Official Journal of the European Union L 88/133 DECISION OF THE EUROPEAN PARLIAMENT of 22 April 2008 on the closure of the accounts of the European Centre for Disease Prevention and Control for the financial year 2006 (2009/206/EC) THE EUROPEAN PARLIAMENT, having regard to the final annual accounts of the European Centre for Disease Prevention and Control for the financial year 2006 (1), having regard to the Court of Auditors' report on the final annual accounts of the European Centre for Disease Prevention and Control for the financial year 2006, together with the Centre's replies (2), having regard to the Council's recommendation of 12 February 2008 (5843/2008 ” C6-0084/2008), having regard to the EC Treaty, and in particular Article 276 thereof, having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (3), and in particular Article 185 thereof, having regard to Regulation (EC) No 851/2004 of the European Parliament and of the Council of 21 April 2004 establishing a European Centre for Disease Prevention and Control (4), and in particular Article 23 thereof, having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 (5), and in particular Article 94 thereof, having regard to Rule 71 of and Annex V to its Rules of Procedure, having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on the Environment, Public Health and Food Safety (A6-0117/2008), 1. Notes that the final annual accounts of the European Centre for Disease Prevention and Control are as annexed to the Court of Auditors' report; 2. Approves the closure of the accounts of the European Centre for Disease Prevention and Control for the financial year 2006; 3. Instructs its President to forward this Decision to the Director of the European Centre for Disease Prevention and Control, the Council, the Commission and the Court of Auditors, and to arrange for its publication in the Official Journal of the European Union (L series). The President Hans-Gert Pà –TTERING The Secretary-General Harald RÃMER (1) OJ C 261, 31.10.2007, p. 49. (2) OJ C 309, 19.12.2007, p. 99. (3) OJ L 248, 16.9.2002, p. 1. (4) OJ L 142, 30.4.2004, p. 1. (5) OJ L 357, 31.12.2002, p. 72.

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 2, 2010 OptimizeRx Corporation (Exact name of registrant as specified in its charter) Nevada 000-53605 26-1265381 (State or other jurisdiction of incorporation) (Commission File Number) (I.R.S. Employer Identification No.) 407 Sixth Street, Rochester, MI (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code:248.651.6568 (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17CFR 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)) SECTION 8 – Other Events Item 8.01 Other Events We have recently entered into the following agreements in the ordinary course of our business to launch our product, Sample MD, with several customers in the industry.These include the following: § Emory Health System, the largest, health care system in Georgia with 9,000 employees and more than 20 health centers, has signed an agreement to launch SampleMD as the exclusive sample voucher and support system. § NuHealth System, a Long Island health care organization, has signed an agreement to launch SampleMD as the exclusive patient sample voucher and system. § Advocate Health Partners, a joint venture between the Advocate Health Care system and 3,600 physicians on the medical staffs of Advocate hospitals, has signed an agreement to launch SampleMD to their physician providers. § Walgreens has signed an agreement to promote their prescription, OTC and special savings offers within the SampleMD platform. § Allscripts has signed an agreement to fully integrate SampleMD within their ePrescribe platform to allow doctors to review and distribute product sample vouchers and co-pay support programs right at the same time as sending the prescription. We expect that each of the above rollouts will be completed within the 4th quarter of 2010, in addition to our upcoming rollouts within Carilion Clinic and Dreyer Medical Centers. Once completed, we believe our company will have one of the largest, most integrated networks to allow more physicians and patients to receive support to help increase first fill and compliance to prescribed medications. Forward-Looking Statements This report contains forward-looking statements.Forward-looking statements include, but are not limited to, statements that express our intentions, beliefs, expectations, strategies, predictions or any other statements related to our future activities or future events or conditions.These statements are based on current expectations, estimates and projections about our business based on current expectations, estimates, and projections about our business based, in part, on assumptions made by our management.These statements are not guarantees of future performances and involve risks, uncertainties and assumptions that are difficult to predict.Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in the forward-looking statements due to numerous factors, including those risks discussed in our Annual Report on Form 10-K and in other documents that we file from time to time with the SEC.Any forward-looking statements speak only as of the date on which they are made, and we do not undertake any obligation to update any forward-looking statement to reflect events or circumstances after the date of this report, except as required by law. 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. OptimizeRx Corporation /s/ David Lester David Lester Chief Executive Officer Date: September 2, 2010

Name: Commission Implementing Regulation (EU) No 857/2013 of 4 September 2013 approving non-minor amendments to the specification for a name entered in the register of protected designations of origin and protected geographical indications (Mont dâ Or/Vacherin du Haut-Doubs (PDO)) Type: Implementing Regulation Subject Matter: marketing; consumption; processed agricultural produce; Europe Date Published: nan 6.9.2013 EN Official Journal of the European Union L 238/1 COMMISSION IMPLEMENTING REGULATION (EU) No 857/2013 of 4 September 2013 approving non-minor amendments to the specification for a name entered in the register of protected designations of origin and protected geographical indications (Mont dOr/Vacherin du Haut-Doubs (PDO)) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (1), and in particular Article 52(2) thereof, Whereas: (1) Regulation (EU) No 1151/2012 repealed and replaced Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (2). (2) By virtue of the first subparagraph of Article 9(1) of Commission Regulation (EC) No 510/2006, the Commission has examined Frances application for the approval of amendments to the specification for the protected geographical indication Mont dOr/Vacherin du Haut-Doubs registered under Commission Regulation (EC) No 1107/96 (3), as amended by Regulation (EC) No 828/2003 (4). (3) Since the amendments in question are not minor, the Commission published the amendment application in the Official Journal of the European Union (5), as required by Article 6(2) of Regulation (EC) No 510/2006. As no statement of objection under Article 7 of that Regulation has been received by the Commission, the amendments to the specification should be approved, HAS ADOPTED THIS REGULATION: Article 1 The amendments to the specification published in the Official Journal of the European Union regarding the name contained in the Annex to this Regulation are hereby approved. Article 2 This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 4 September 2013. For the Commission, On behalf of the President, Dacian CIOLOÈ Member of the Commission (1) OJ L 343, 14.12.2012, p. 1. (2) OJ L 93, 31.3.2006, p. 12. (3) OJ L 148, 21.6.1996, p. 1. (4) OJ L 120, 15.5.2003, p. 3. (5) OJ C 302, 6.10.2012, p. 16. ANNEX Agricultural products intended for human consumption listed in Annex I to the Treaty: Class 1.3. Cheeses FRANCE Mont dOr/Vacherin du Haut-Doubs (PDO)

POWER OF ATTORNEY Know all by these presents that the undersigned hereby constitutes and appoints each of Masayoshi Son, Kazuhiko Kasai, Yoshimitsu Goto, Masato Suzaki and Joshua O. Lubov signing singly, the undersigned's true and lawful attorney-in-fact to: 1. execute for and on behalf of the undersigned, in the undersigned's capacity as an officer and director of Galaxy Investment Holdings, Inc. ("Galaxy"), in Galaxy's capacity as a stockholder of and in relation to Galaxy's stockholdings in Sprint Corporation (the "Company"), Forms 3, 4, and 5 and Schedules 13D and 13G and any Amendments thereto, in accordance with Sections 13 and 16(a) of the Securities Exchange Act of 1934, as amended, and the rules thereunder; 2. do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Form 3, 4, or 5 and Schedule 13D and 13G and any Amendments thereto and timely file such Form, Schedule or Amendment with the United States Securities and Exchange Commission and any stock exchange or similar authority; and 3. take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, Galaxy, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's discretion. The undersigned hereby grants to each such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact's substitute or substitutes, shall lawfully do or cause to be done by virtue of this Power of Attorney and the rights and powers herein granted. The undersigned acknowledges that the foregoing attorneys-in-fact, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned's responsibilities in respect of Galaxy's responsibility to comply with Sections 13 and 16 of the Securities Exchange Act of 1934, as amended. This Power of Attorney shall remain in full force and effect until Galaxy is no longer required to file Forms 3, 4, or 5 or Schedule 13D and 13G and any Amendments thereto with respect to Galaxy's holdings of and transactions in securities issued by the Company, unless earlier revoked by the undersigned in a signed writing delivered to the foregoing attorneys-in-fact. This Power of Attorney supersedes and revokes, as of the date hereof, all powers providing authority similar to the above-referenced authority granted in this Power of Attorney. IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 5th day of August, 2013. /s/ Katsumasa Niki Name: Katsumasa Niki Its: President

Exhibit 32.1 CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350 In connection with the accompanying Quarterly Report on Form 10-Q of Helios and Matheson Analytics Inc. for the period ending June 30, 2015, I, Divya Ramachandran, the Principal Executive Officer of Helios and Matheson Analytics Inc., hereby certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that: such Quarterly Report on Form 10-Q for the period ending June 30, 2015 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and the information contained in such Quarterly Report on Form 10-Q for the period ending June 30, 2015 fairly presents, in all material respects, the financial condition and results of operations of Helios and Matheson Analytics Inc., on a consolidated basis. Date: August 10, 2015 /s/ Divya Ramachandran Name: Divya Ramachandran Title: President and Chief Executive Officer (Principal Executive Officer) A signed original of this written statement required by §906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request. The foregoing certification is being furnished solely pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code) and is not being filed as part of the Form 10-Q or as a separate disclosure document

Exhibit 3.1 RESTATED ARTICLES OF INCORPORATIONOF WEST COAST BANCORP(including amendments through January 20, 2010) ARTICLE I NAME The name of the corporation is WEST COAST BANCORP. ARTICLE II CAPITALIZATION The corporation is authorized to issue 260,000,000 shares of stock divided into two classes as follows: A. Common Stock. 250,000,000 shares of common stock which shall have unlimited voting rights, subject only to such voting rights as may be specified in respect of preferred stock, and shall have the right to receive the net assets of the corporation upon dissolution, subject only to prior payment of such amount of the net assets of the corporation as may be specified in respect of shares of preferred stock. B. Preferred Stock. 10,000,000 shares of preferred stock issuable from time to time in one or more series as permitted by law and the provisions of the articles of incorporation as may be determined from time to time by the board of directors (or a committee of the board of directors or an officer duly authorized to take such action) and stated in a resolution or resolutions authorizing the issuance of shares of such series prior to the issuance of any such shares; provided that such issuance shall be subject to the affirmative vote of the holders of a majority of the shares present and entitled to vote at a meeting at which such action is submitted for approval if the board of directors has received notice of or is otherwise aware of any transaction or other event pursuant to which (i) any "person" (as such term is used in Sections 13(d) and 14(d) or any successor provisions of the Securities Exchange Act of 1934 and the Securities and Exchange Commission's rules and regulations pursuant thereto (collectively, the "Exchange Act")), other than the corporation, a subsidiary of the corporation, an employee benefit or similar plan sponsored by the corporation, or a person permitted to file reports of beneficial ownership of the corporation's common stock on Schedule 13G under the Exchange Act, is or proposes to become the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the corporation representing 10 percent or more of the combined voting power of the corporation's then outstanding securities or (ii) the corporation or any of its subsidiaries representing 50 percent or more of its assets would be a party to a merger or consolidation in which less than 50 percent of the outstanding voting securities of the surviving or resulting corporation or such surviving or resulting corporation's parent would be owned in the aggregate by persons who were shareholders of the corporation immediately prior to such merger or consolidation: 1. Issuance in Series. The board of directors (or a committee of the board of directors or an officer duly authorized to take such action) shall have the authority to fix and determine, subject to the provisions hereof, the rights and preferences of the shares of any series so established, including, without limitation, the rate of dividend, whether the dividend shall be cumulative, whether shares may be redeemed and, if so, the redemption price and the terms and conditions of the redemption, the amount payable upon shares in the event of voluntary or involuntary liquidation, sinking fund provisions, if any, for the redemption or purchase of shares, the terms and conditions, if any, on which shares may be converted, and voting rights, if any. 2. Dividends. The holders of shares of preferred stock of a series shall be entitled to receive dividends, out of funds legally available therefor, at the rate and at the time or times as may be provided in respect of a particular series of preferred stock. If such dividends shall be cumulative, and if dividends shall not have been paid, then the deficiency shall be fully paid or the dividends declared and set apart for payment before any dividends on the common stock shall be paid or declared and set apart for payment. Unless otherwise provided in respect of a particular series of preferred stock, the holders of the preferred stock shall not be entitled to receive any dividends thereon other than the dividends referred to in this section. 3. Redemption. The preferred stock of a series may be redeemed in such amount or amounts, and at such time or times, if any, as may be provided in respect of a particular series of preferred stock. In any event, preferred stock may be repurchased by the corporation to the extent legally permissible. 4. Liquidation. In the event of any liquidation, dissolution, or winding up of the affairs of the corporation, whether voluntary or involuntary, then, before any distribution shall be made to the holders of the common stock, the holders of the preferred stock of a series shall be entitled to be paid the preferential amount or amounts as may be provided in respect of a particular series of preferred stock per share and dividends accrued thereon to the date of such payment. The holders of the preferred stock shall not be entitled to receive any distributive amounts upon the liquidation, dissolution, or winding up of the affairs of the corporation other than the distributive amounts referred to in this section, unless otherwise provided in respect of a particular series of preferred stock. 5. Conversion. Shares of a particular series of preferred stock may be convertible or converted into common stock or other securities of the corporation on such terms and conditions as may be provided in respect of that series. 6. Voting Rights. Holders of preferred stock of a series shall have such voting rights not in excess of one vote per share as may be provided in respect of a particular series of preferred stock. C. Preemptive Rights. Shareholders shall have no preemptive right to acquire shares or other securities of the corporation which would otherwise be available to the shareholders pursuant to ORS 60.174. D. Cumulative Rights. Shareholders do not have cumulative voting rights with respect to the election of directors of the corporation. ARTICLE III BOARD OF DIRECTORS A. Number of Directors. The board of directors shall consist of not fewer than eight (8) or more than twenty (20) directors. The exact number within such minimum and maximum limits shall be fixed and determined by resolutions approved by at least a 75 percent vote of the total number of directors then in office. The board of directors may fill vacancies on the board of directors, whether caused by resignation, death or otherwise; provided, that at no time shall the total number exceed twenty (20). B. Terms of Directors. Beginning with the directors elected at the corporation's 2003 annual meeting of shareholders, each director shall serve for a term ending on the date of the next annual meeting of shareholders and until his or her successor is elected and qualified or until his or her earlier resignation, removal from office, or death. C. Removal from Office. No director may be removed from office without cause except by a vote of 66 2/3 percent of the shares then entitled to vote at an election of directors. Except as otherwise provided by law, cause for removal shall exist only if the board of directors has reasonable grounds to believe that the corporation has suffered or will suffer substantial injury as a result of the gross negligence, willful misconduct, or dishonesty of the director whose removal is proposed. ARTICLE IV DIRECTOR LIABILITY Directors of the corporation shall not be liable to the corporation or its shareholders for monetary damages for conduct as directors except to the extent that the Oregon Business Corporation Act, as it now exists or may hereafter be amended, prohibits elimination or limitation of director liability.

DELAINE CORPORATION alton Avenue Albany, IN 47320 June 21, 2011 United States Securities and Exchange Commission Division of Corporate Finance treet, NE Washington, DC 20549-4561 Attention: Jessica Kane Re:Delaine Corporation Registration Statement on Form S-1 Filed January 25, 2011 File Number: 333-171861 Dear Sirs, In response to your letter dated February 18, 2011, concerning the deficiencies in our registration statement on Form S-1, we provide the following responses: General 1. Your filing indicates that you are a development stage company involved primarily in organizational activities to date with nominal assets and working capital, no revenues, no firm commitments for raising additional financing, no operations, no manufactured products, and no employees (other than your sole officer and director).These and other facts suggest that your proposed business is commensurate in scope with the uncertainty ordinarily associates with a blank check company and should comply with Rule 419 of Regulation C under the Securities Act of 1933, as amended.Please provide us with your analysis as to why you believe Rule 419 does not apply to your offering or revise the registration statement to comply with Rule 419 and confirm that you will file post-effective amendment as required by Rule 419(d) and (e).Please note that the offer must contain the terms set forth in Rule 419(e)(2).If true, disclose on the cover page of the prospectus that you are not a blank check company and have no intention of entering into a business combination. Referring to Section (a)(2) of Rule 419 of the Securities Act, a blank check company is defined as a company that is issuing penny stock and is a “development stage company that has no specific business plan or purpose or has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies, or other entity.” While we are a development stage company, the company is not a blank check company, nor is our business commensurate in scope with the uncertainty ordinarily associates with a blank check company because: - the company has its own specific operational business plan; - to date the company has taken substantial steps to further its business plan by setting up its own website, and offering a catalog of products for sale to the public.The Company began earning revenue from sales in November of 2010, and currently maintains an online catalog of over 100 products for sale to the public. - the fact that the company is not a blank check company under Rule 419 has been prominently disclosed on the prospectus cover page; - the company’s business plan has no indications to engage in a merger or acquisition with an unidentified company or companies, or other entity. -1- 2. We note that the information provided throughout the registration statement corresponds to dates which are now outdated.For example, on page 36, you provide information relating to executive compensation and the security ownership of certain beneficial owners and management as of September 30, 2010.Please update your disclosure throughout the registration statement to provide the most recent practicable information. The Company has updated its disclosure throughout the registration statement to provide the most recent practicable information. Calculation of Registration Fee, page 2 3. Please specify which section of Rule 457 you relied upon for estimating the registration fee. The Company has specified which section of Rule 457 it relied upon for estimating the registration fee. Prospectus Cover Page 4. We note your characterization of this offering as being undertaken on a “best efforts” basis.As you are not engaging a financial intermediary to sell your offering, it appears that your offering should be characterized as a direct primary offering.“Best effort” is a term of art that implies the engagement of a third party and their contracted level of performance on your behalf.Please revise your disclosure throughout to better characterize your offering as being a direct primary offering. The Company has revised its disclosure to better characterize its offering as being a direct primary offering. Prospectus Summary, page 5 5. In this section, please clearly state that you have not commenced operations and that you have not commenced developing your own proprietary products, including the lighted ratcheting wrench.We note your disclosure on pages 24 and 31 that you have not yet begun development of a working prototype and that the development of the lighted ratcheting wrench has been limited to initial amateur drawings. The Company has updated its disclosure to show that it has commenced operations.The Company has clarified that development of the lighted ratcheting wrench has been limited to initial amateur drawings, and filing of a patent application: development of a working prototype has not yet begun. 6. Additionally, if true, please disclose that you are not a blank check company and have no intention of entering into a business combination. The Company has disclosed that it is not a blank check company and has no intention of entering into a business combination. 7. We note your statement in the third paragraph on page 5 that you “currently generate income through the resale of tools and related products, manufactured by third party companies, directly to the public through the on-line marketplace.”Please clarify this statement, and if necessary, revise your disclosure accordingly in light of your disclosure in the fourth paragraph on page 5 that you “have generated no revenues” as of September 30, 2010. The Company began generating revenue in November 2010.The Company has added disclosure indicating when it began generating revenue, and its sources of revenue. The Offering, page 6 -2- 8. Please disclose that there is no minimum to this offering. The Company has disclosed that there is no minimum to this offering. Risk Factors, page 7 9. Please remove the third and fourth sentences in the introductory paragraph to this section.All material risks should be described.If risks are not deemed material, you should not reference them. The third and fourth sentences of the introductory paragraph have been removed. Because a single shareholder will continue to own a substantial amount of our stock after completion of this offering, other investors will have minimal influence over our business, page 11 Please identify this single shareholder as your sole officer and director, Timothy Moore.Additionally, please expand this risk factor to discuss Mr. Moore’s stock ownership and corresponding ability to control your company if you sell less than six million shares in this offering.On page 36, we note that Mr. Moore will beneficially own approximately 71.6 percent and 55.8 percent of your shares of common stock if you sell two and four million shares, respectively, in this offering. The Company has identified Mr. Moore as the single shareholder, and expanded the risk factor to discuss Mr. Moore’s stock ownership and corresponding ability to control your company if you sell less than six million shares in this offering. Dilution of the Price per Share, page 15 You disclose that as of September 30, 2010, the net tangible book value of your shares of common stock was $(319) or approximately $0.0006 per share based upon 5,050,000 shares outstanding.In order not to imply a greater degree of precision than exists, please revise your presentations of net loss per share throughout the filing to round only to the nearest cent. The presentations of net loss per share throughout the filing have been revised to round only to the nearest cent. Plan of Distribution, page 18 We note your statement that “[i]nvestors cannot revoke their intention to purchase our securities, and there will be no refund of subscription funds.”Please tell us whether you believe investors might be able to demand the return of their subscription proceeds pursuant to rights under state law.If such rights exist, please revise your disclosure accordingly to note the existence of such rights. The disclosure has been revised to note the existence of the existence of revocation rights. Interest of Named Experts and Counsel, page 22 Please include in the prospectus the address of counsel who passed on the legality of the shares to be issued.Please refer to Paragraph 23 of Schedule A of the Securities Act of 1933. The prospectus has been revised to include the address of counsel who passed on the legality of the shares to be issued. Description of Business, page 23 Please describe the sources and availability of the raw materials you will use in the manufacturing of your products.See Item 101(h)(4)(v) of Regulation S-K. -3- The Company has added disclosure that because of the early stage of development of the lighted ratcheting wrench, it has not identified the sources and availability of the raw materials that will be used in the manufacturing of the lighted ratcheting wrench. General, page 24 We note your use of the phrases “we own the rights” and “we own the intellectual property rights” to a lighted ratcheting wrench in this section and in other parts of the prospectus.However, based on your discussion of your intellectual property rights to the lighted ratcheting wrench on page 26, it is unclear how you “own” these rights since it appears that you have obtained a provisional patent that will expire in 12 months.Please clarify your ownership of these rights and revise your disclosure as necessary. The Company has amended its disclosure accordingly. We note your statement in the second paragraph on page 24 that your sales revenues to date have been limited; however, your financial statements do not reflect any revenue as of September 30, 2010.Please advise or revise your disclosure to state that you have no sales revenues. The Company began earning revenues in November 2010, and its revenues are reflected in its financial statements included in the amended Form S-1. Employees, page 26 Please revise this disclosure to clearly state that you currently do not conduct business and are engaged only in development stage activities. The Company is currently conducting business, and the disclosure has been revised accordingly. Competition, page 27 Please disclose the methods of competition in the retail market for tools.See Item 101(h)(4)(iv) of Regulation S-K. The disclosure has been revised to clarify the Company’s competitive position in the industry and methods of competition. Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters, page 29 In this section, please disclose the number of shares of common stock, if any, that could be sold pursuant to Rule 144 under the Securities Act of 1933 or that you have agreed to register under the Securities Act for resale by security holders.See Item 201(a)(2)(ii) of Regulation S-K. The section has been amended to disclose that none of the Company’s shares are currently eligible to be sold pursuant to Rule 144 under the Securities Act of 1933, and it has not agreed to register any of its shares under the Securities Act for resale by security holders. -4- Management’s Discussion and Analysis of Financial Condition and Results of Operations, apge 29 Liquidity and Capital Resources, page 29 We note that you have been funded by the private sale of equity to one investor since your inception.Please describe this private sale of equity, including the date of the sale, the proceeds obtained, and the amount of equity issued.Additionally, we note that you intend to fund continuing operations through equity financing arrangements.Please disclose any current plans for these equity-financing arrangements.Finally, we note your statement on page 7 that the company “will be dependent primarily on the raising of capital in order to continue operations for the foreseeable future.”Please revise this section to provide your assessment of the accessibility of, and risks to accessing, needed capital. The Section has been revised to describe the private sale of equity, and to disclose the Company’s assessment of the accessibility of, and risks to accessing needed capital. Plan of Operation, page 30 Please disclose the total amount of money necessary to commence operations.We note your statement on page 31 that $60,000 will fund you for 12 months and $30,000 will fund you for six months. No funds are necessary to commence operations:operations commenced in November 2010. Please revise this section to provide a more specific plan of operation for the next 12 months by providing a more detailed description of each business activity and the steps you will take to implement each aspect of your business plan.For example, please disclose when you plan to contact third party manufacturers, when you anticipate obtaining a prototype, and when you plan to begin testing the prototype.For each step necessary to implement your business plan, please provide a timeline for completion and disclose the costs associates with completing each step.Please discuss the modifications you may have to make to your business plan, methods of implementation, and budget if you sell less than six million shares.Additionally, please also disclose your plan of operations with respect to the company’s day-to-day operations. The section has been revised accordingly. Website Development, page 31 In this section, please address the following issues: · Disclose when you expect the website to be operational. · Please explain in more detail what you mean by “website search optimization service.” In addition, please tell us whether you intend to use your website in connection with this offering.If you do, please provide us supplementally with copies of all offering material that you intend to make available through your website. The Company’s website is now fully operational.The Company has disclosed in more detail what it means by “website search optimization service.”The Company does not intend to use its website in connection with this offering. Additional Information, page 37 We note your statement in the first sentence of the second paragraph.Please note that you may not qualify information in the prospectus by reference to information outside the prospectus.See Rule 411(a) of Regulation C.Please revise your disclosure accordingly. The Company has removed the first sentence of the second paragraph of this section. -5- Financial Statements General Please include interim financial statements for the period ended December 31, 2010.Please similarly update your financial information throughout the filing.See Rule 8-08 of Regulation S-X. The Company has included financial statements for the period ended December 31, 2010 in its amended S-1 filing, and updated its financial information throughout the filing. Please disclose in the footnotes to your financial statements the actual date through which subsequent events have been evaluated and whether that date is either the date the financial statements were issued or the date the financial statements were available to be issued.Refer to FASB ASC 855-10-50-1. The Company has disclosed in the footnotes to its financial statements the actual date through which subsequent events have been evaluated and whether that date is either the date the financial statements were issued or the date the financial statements were available to be issued. Exhibit 5.1 – Legal Opinion of Befumo & Schaeffer PLLC We note counsel’s opinion states that the “Registered Shares have been, or shall upon issuance, be issued as duly and validly authorized and issued, fully paid and non-assessable.”Please note that this opinion does not meet the requirements established in Item 601(b)(5)(i) of Regulation S-K.Please arrange for counsel to opine that the shares are duly authorized and that the share will, when sold, be legally issued, fully paid and non-assessable. The Company has obtained an opinion from counsel meeting the requirements established in Item 601(b)(5)(i) of Regulation S-K. Yours truly, /s/ Timothy A. Moore Timothy A. Moore, Principal Executive Officer, Principal Financial Officer, Principal Accounting Officer, President & Director -6-

Exhibit 31.2 THE CERTIFICATION REQUIRED BY RULE 13a – 14a (17 CFR 240. 13a – 14a) or RULE 15d – 14(a) (17CFR 240.15d – 14(a)) I, Rizalyn Cabrillas, certify that: 1.I have reviewed this quarterly report on Form 10-Q of Eaglecrest Resources, Inc. (the “registrant”); 2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a – 15(f) and 15d -15(f)) for the registrant and have; (a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under 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 controls over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control of financial reporting; and 5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): (a)All significant deficiencies and material weaknesses in the design or operation ofinternal 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 over financial reporting. Date: June 13, 2011 RIZALYN CABRILLAS Rizalyn Cabrillas Chief Accounting Officer Chief Financial Officer and Director -1-

Confidential Exhibit 10.49 Amendment No. 1 to Manufacturing Services Agreement relating to rhThrombin This Amendment No. 1 to Manufacturing Services Agreement relating to rhThrombin, dated as of December 3, 2007 (“Effective Date”), is entered into by and between Patheon Italia S.p.A. (“Patheon”) and ZymoGenetics, Inc., a Washington corporation (“ZGEN”). The parties hereby agree that the Manufacturing Services Agreement relating to rhThrombin, dated January 1, 2006 (the “Agreement”) shall be amended as follows:   1. Territory Schedule H shall be replaced by the updated Schedule H attached hereto.   2. Ratification of Agreement All other terms and obligations of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, ZGEN and Patheon have executed this Amendment No. 1 to Manufacturing Services Agreement relating to rhThrombin as of the Effective Date.   Patheon Italia S.p.A.     ZymoGenetics, Inc. /s/ Aldo Braca     /s/ Vaughn B. Himes Aldo Braca     Vaughn B. Himes, Ph.D. Managing Director Patheon Italia S.p.A. – President Patheon Europe     Senior Vice President, Technical Operations Date: December 3, 2007     Date: December 5, 2007 Confidential SCHEDULE H TERRITORY United States of America Countries within Europe   •        Albania    •        Andorra    •        Armenia •        Austria    •        Azerbaijan    •        Belarus •        Belgium    •        Bosnia and Herzegovina    •        Bulgaria •        Croatia    •        Cyprus    •        Czech Republic •        Denmark    •        Estonia    •        Finland •        France    •        Georgia    •        Germany •        Greece    •        Hungary    •        Iceland •        Ireland    •        Italy    •        Kazakhstan •        Kyrgyzstan    •        Latvia    •        Liechtenstein •        Lithuania    •        Luxembourg    •        Macedonia •        Malta    •        Moldova    •        Monaco •        Montenegro    •        Netherlands    •        Norway •        Poland    •        Portugal    •        Romania •        Russia    •        San Marino    •        Serbia •        Slovakia    •        Slovenia    •        Spain •        Sweden    •        Switzerland    •        Tajikistan •        Turkey    •        Turkmenistan    •        Ukraine •        United Kingdom    •        Uzbekistan    •        Vatican City Countries within Canada/Latin America Region   •        Canada    •        Mexico    •        Argentina •        Bolivia    •        Brazil    •        Chile •        Colombia    •        Dominican Republic    •        Ecuador •        El Salvador    •        Guatemala    •        Nicaragua •        Paraguay    •        Peru    •        Uruguay •        Venezuela    •        Costa Rica    •        Honduras •        Panama    •        Belize    •        Cuba •        French Guiana    •        Guadeloupe    •        Guyana •        Haiti    •        Suriname    Countries within Asia/Pacific Region   •        Australia    •        Cambodia    •        China •        Hong Kong    •        Indonesia    •        India •        Malaysia    •        New Zealand    •        Pakistan •        Philippines    •        Singapore    •        South Korea •        Vietnam    •        Taiwan    •        Thailand •        Bahrain    •        Bangladesh    •        Bhutan •        Brunei    •        Israel    •        Jordan •        Kuwait    •        Oman    •        Qatar •        Saudi Arabia    •        United Arab Emirates    Countries within Japan Region   •        Japan

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q (Mark One) xQUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED: March 31, 2015 o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 COMMISSION FILE NUMBER 001-35850 MICRONET ENERTEC TECHNOLOGIES, INC. (Exact Name of Registrant as Specified in its Charter) Delaware 27-0016420 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 28 West Grand Avenue, Suite 3, Montvale, NJ (Address of principal executive offices) (Zip Code) (201) 225-0190 (Registrant’s telephone number, including area code) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes xNo o Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§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 xNo o Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer o Accelerated filer o Non-accelerated filer o (Do not check if a smaller reporting company) Smaller reporting company x Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x As of May 14, 2015, there were 5,856,246 issued and outstanding shares of the registrant’s Common Stock, $0.001 par value per share. TABLE OF CONTENTS PART I - CONDENSED FINANCIAL INFORMATION Item 1. Financial Statements. 3 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations. 16 Item 3. Quantitative and Qualitative Disclosures about Market Risk. 23 Item 4. Controls and Procedures. 23 PART II - OTHER INFORMATION Item 6. Exhibits. 24 SIGNATURES 25 EXHIBIT INDEX 26 2 PART I - FINANCIAL INFORMATION Item 1. Financial Statements. MICRONET ENERTEC TECHNOLOGIES, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEETS (USD In Thousands, Except Share and Par Value Data) March31, December31, ASSETS Current assets: Cash and cash equivalents $ $ Marketable securities Trade account receivables, net Inventories Other accounts receivable Total current assets Property and equipment, net Intangible assets and others, net Long term deposit 50 46 Goodwill Total long term assets Total assets $ $ 3 MICRONET ENERTEC TECHNOLOGIES, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED BALANCE SHEETS (USD In Thousands, Except Share and Par Value Data) March 31, December31, LIABILITIES AND EQUITY Short term bank credit and current portion of long termbank loans $ $ Current portion of long term notes - Trade accounts payable Other accounts payable Total current liabilities Long term loans from banks Finance lease 44 56 Accrued severance pay, net 25 29 Deferred tax liabilities, net 43 57 Total long term liabilities Stockholders’ Equity: Preferred stock; $.001 par value, 5,000,000 shares authorized, none issued and outstanding Common stock; $.001 par value, 25,000,000 shares authorized, 5,856,246 shares issued and outstanding as of March 31, 2015 and December 31, 2014 6 6 Additional paid in capital Accumulated other comprehensive income Retained earnings Micronet Enertec stockholders' equity Non-controlling interests Total equity Total liabilities and equity $ $ 4 MICRONET ENERTEC TECHNOLOGIES, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF INCOME (USD In Thousands, Except Share and Earnings Per Share Data) (Unaudited) Three months endedMarch 31, Revenues $ $ Cost of revenues Gross profit Operating expenses: Research and development Selling and marketing General and administrative Amortization of intangible assets 93 Total operating expenses Lossfrom operations ) ) Finance expense, net 92 46 Loss before provision for income taxes ) ) Provision for income taxes ) 79 Netloss ) ) Net loss (income) attributable to non-controlling interests ) Net loss attributable to Micronet Enertec $ ) $ ) (*) Loss per share attributable to Micronet Enertec: Basic $ ) $ ) Diluted $ ) $ ) Weighted average common shares outstanding: Basic Diluted 5 MICRONET ENERTEC TECHNOLOGIES, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (USD In Thousands) (Unaudited) Three months ended March 31, Net loss $ ) $ ) Other comprehensive income net of tax: Currency translation adjustment ) ) Total comprehensiveloss ) ) Comprehensive income (loss) attributable to the non-controlling interests ) 71 Comprehensive loss attributable to Micronet Enertec Technologies, Inc. ) ) 6 MICRONET ENERTEC TECHNOLOGIES, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (USD In Thousands) (Unaudited) Three months ended March 31, CASH FLOWS FROM OPERATING ACTIVITIES: Netloss $ ) $ ) Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization Marketable securities Change in fair value of derivatives, net (5 ) ) Change in deferredtaxes, net ) ) Accrued interests on bankloans ) 6 Amortization of discount and change in value of long term convertible debenture, net - 50 Stock based compensation 69 6 Changes in operating assets and liabilities (net of impact ofacquisition): Decrease in trade account receivables Decrease (increase) in inventories ) Decreasein accrued severance pay, net (4 ) ) Decrease (increase) in other account receivables ) Decreasein trade account payables ) ) Decrease in other account payables ) ) Net cash provided by (used in) operating activities $ ) $ 3 7 MICRONET ENERTEC TECHNOLOGIES, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (USD In Thousands) (Unaudited) Three months ended March 31, CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of property and equipment ) ) Marketable securities ) ) Net cash used in investing activities $ ) $ ) CASH FLOWS FROM FINANCING ACTIVITIES: Short term bank credit 46 Repayment oflong-term bank loans ) ) Repayment of long-term notes ) - Net cash used in financing activities $ ) $ ) NET CASHDECREASEIN CASH AND CASH EQUIVALENTS ) ) CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD TRANSLATION ADJUSTMENT OF CASH AND CASH EQUIVALENTS ) 61 CASH AND CASH EQUIVALENTS AT END OFPERIOD $ $ 8 NOTE 1—DESCRIPTION OF BUSINESS Overview A. Micronet Enertec Technologies, Inc., a U.S.-based Delaware corporation, was formed on January 31, 2002. On March 14, 2013, we changed our corporate name from Lapis Technologies, Inc. to Micronet Enertec Technologies, Inc. (“we,” “Micronet Enertec” or “the Company”). We operate through two Israel-based companies, Enertec Systems 2001 Ltd (“Enertec”), our wholly-owned subsidiary, and Micronet Ltd (“Micronet”), in which we held 62.5% as of March 31, 2015 and is controlled by us. Micronet is a publicly traded company on the Tel Aviv Stock Exchange and operates in the growing commercial Mobile Resource Management (“MRM”) market. Micronet through both its Israeli and U.S. operational offices designs, develops, manufactures and sells rugged mobile computing devices that provide fleet operators and field workforces with computing solutions in challenging work environments. Micronet’s vehicle cabin installed and portable tablets increase workforce productivity and enhance corporate efficiency by offering computing power and communication capabilities that provide fleet operators with visibility into vehicle location, fuel usage, speed and mileage. Micronet’s customers consist primarily of application service providers and solution providers specializing in the MRM market. Enertec operates in the Defense and Aerospace markets and designs, develops, manufactures and supplies various customized military computer-based systems, simulators, automatic test equipment and electronic instruments. Enertec’s solutions and systems are designed according to major aerospace integrators’ requirements and are integrated by them into critical systems such as command and control, missile fire control, maintenance of military aircraft and missiles for use by the Israeli Air Force and Navy and by foreign defense entities. B.Micronet Acquisition of Beijer U.S. Vehicle Operations On June 2, 2014, the Company, through Micronet, completed the acquisition of certain assets and liabilities (the “Transaction”), of Beijer Electronics Inc’s. (the “Seller”) U.S. vehicle business and operations related to the supply of panels to various transportation sectors (the “Vehicle Business”). The total purchase price of the Transaction was $7,105. The Vehicle Business results of operations were included in our consolidated reports commencing on the closing date. Upon the closing of the Transaction, Micronet incorporated a wholly-owned U.S.-based subsidiary in the state of Utah under the name Micronet Inc., through which the purchased business is conducted. 9 NOTE 1—DESCRIPTION OF BUSINESS -(continued) B.Micronet Acquisition of Beijer US Vehicle Operations-(continued) The Transaction was financed through, among other funds, a loan granted to Micronet pursuant to a loan agreement (the “Loan Agreement”), entered between Micronet and the First International Bank of Israel (the “Bank” and the “Loan”, respectively). Under the Loan Agreement, the Bank loaned Micronet $4,850 for the financing of the Transaction. Pursuant to the terms of the Loan Agreement, $2,425 of the Loan bears interest at a quarterly adjustable rate of Prime plus 1.5 percent (3.75% percent as of the date of the Loan), (the “Long Term Portion”). The Long Term Portion plus interest is due and payable in twelve equal consecutive quarterly installments beginning on August 29, 2014. The balance of the loan in the amount of $2,425 bears interest at a variable adjustable rate of Prime plus 1.2 percent (3.45% percent as of the date of the Loan) (the “Short Term Portion”). The Short Term Portion is due and payable within one year from the date of the Loan, subject to renewal, and the interest on the Short Term Portion is due and payable every quarter beginning on August 29, 2014. The Loan is secured mainly by a floating charge against Micronet's assets and a mortgage on a building owned by Micronet. The Loan is subject to customary covenants, terms, conditions, events of default and certain pre-payment provisions. The purchase consideration was allocated to tangible assets and intangible assets acquired based on their estimated fair values using a purchase price allocation made by an independent third party appraisal. The fair value assigned to identifiable intangible assets acquired has been determined by using valuation methods that discount expected future cash flows to present value using estimates and assumptions determined by management. The Company determined that the fair values of assets acquired exceeded the purchase price by approximately $1,466, which is recognized as goodwill.Upon the purchase price allocation, an amount of $1,680 was allocated to technology to be amortized over a 5-year period, and an amount of $2,552 was allocated to estimated fair value of the customer relations intangible asset to be amortized over a 5-year period. The table below summarizes the estimates of the fair value of assets acquired at the purchase date. Inventories $ Property and equipment 47 Identifiable intangible assets: Customer relations Core technology Goodwill Total assets acquired $ The contribution of the Vehicle Business results to our consolidated income and net income was $1,892 and $212, respectively, for the three months ended March 31, 2015. 10 NOTE 1—DESCRIPTION OF BUSINESS -(continued) B.Micronet Acquisition of Beijer US Vehicle Operations-(continued) The unaudited pro forma financial information in the table below summarizes the combined results of our operations and those of the Vehicle Business for the periods shown as though the Transaction occurred as of the beginning of fiscal year 2014. The pro forma financial information for the periods presented includes the business combination accounting effects of the Transaction, including amortization charges from acquired intangible assets. The pro forma financial information presented below is for informational purposes only, is subject to a number of estimates, assumptions and other uncertainties, and is not indicative of the results of operations that would have been achieved if the Transaction had taken place at January 1, 2014. The unaudited pro forma financial information is as follows: Three MonthsEnded March 31, Total revenues $ Net loss $ ) NOTE 2 - BASIS OF PRESENTATION AND CONSOLIDATION Basis of Presentation The condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) for interim financial statements and with the instructions to Form 10-Q and Article 10 of Regulation S-X of the U.S. Securities and Exchange Commission, or SEC. Accordingly, they do not contain all information and footnotes required by accounting principles generally accepted in the United States of America for annual financial statements. The condensed consolidated financial statements include the accounts of the Company and its subsidiaries. All intercompany balances and transactions have been eliminated in consolidation. In the opinion of the Company’s management, the accompanying unaudited condensed consolidated financial statements contain all the adjustments necessary (consisting only of normal recurring accruals) to present the financial position of the Company as of March 31, 2015 and the results of operations and cash flows for the periods presented. The results of operations for the three months ended March 31, 2015 are not necessarily indicative of the operating results for the full fiscal year or any future period. These condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and related notes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2014. The Company’s accounting policies are described in the Notes to Consolidated Financial Statements in its Annual Report on Form 10-K for the year ended December 31, 2014, and updated, as necessary, in this Quarterly Report on Form 10-Q. Use of Estimates The preparation of the financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the dates of the financial statements and the reported amounts of revenue and expenses during the reporting periods. Actual results could differ from those estimates. 11 NOTE 2 - BASIS OF PRESENTATION AND CONSOLIDATION (Cont.) Principles of consolidation The consolidated financial statements comprise the results and position of the Company and its subsidiaries. Control is the power to govern the financial and operating policies of an entity so as to obtain benefits from its operating activities. In assessing control, legal and contractual rights are taken into account. The consolidated financial statements of subsidiaries are included in the consolidated financial statements from the date that control is achieved until the date that control is ceased. Intercompany transactions and balances are eliminated upon consolidation. Recent Accounting Pronouncements In January 2015, the Financial Accounting Standard Board ("FASB") issued Accounting Standard Update("ASU") No. 2015-01 (ASU 2015-01), "Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items".ASU 2015-01eliminates the requirement to consider whether an underlying event or transaction is extraordinary, and if so, to separately present the item in the income statement net of tax, after income from continuing operations. Items that are either unusual in nature or infrequently occurring will continue to be reported as a separate component of income from continuing operations. Alternatively, these amounts may still be disclosed in the notes to the financial statements. The same requirement has been expanded to include items that are both unusual and infrequent. ASU 2015-01 is effective for all entities for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2015. Early adoption is permitted from the beginning of the fiscal year of adoption. The Company does not expect material impacts on its consolidated financial statements upon adoption. In April 2015, the FASB issued ASU 2015-03, "Simplifying the Presentation of Debt Issuance Costs". ASU 2015-03requires debt issuance costs related to a recognized debt liability to be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability in a manner consistent with the treatment for debt discounts. The amendments in this update do not affect the recognition and measurement guidance for debt issuance costs. In addition, ASU 2015-03 requires that the amortization of debt issuance costs be reported as interest expense. The standard is effective for fiscal years and the interim periods within those fiscal years beginning on or after December 15, 2015. ASU 2015-03 should be applied retrospectively to all prior periods presented in the financial statements, subject to the disclosure requirements for a change in an accounting principle. Early adoption is permitted for financial statements that have not been previously issued. The Company does not expect material impacts on its consolidated financial statements upon adoption. NOTE 3 – FAIR VALUE MEASUREMENTS The accounting guidance establishes a valuation hierarchy for disclosure of the inputs to valuation used to measure fair value. This hierarchy prioritizes the inputs into three broad levels as follows: Level 1 – Observable inputs that reflect unadjusted quoted prices for identical assets or liabilities in active markets that the Company has the ability to access at the measurement date. 12 NOTE 3 – FAIR VALUE MEASUREMENTS (Cont.) Level 2 – Observable inputs such as quoted prices for similar instruments and quoted prices in markets that are not active, and inputs that are directly observable or can be corroborated by observable market data. The types of assets and liabilities included in Level 2 are typically either comparable to actively traded securities or contracts, such as treasury securities with pricing interpolated from recent trades of similar securities, or priced with models using highly observable inputs, such as commodity options priced using observable forward prices and volatilities. Level 3 – Significant inputs to pricing that have little or no observability as of the reporting date. The types of assets and liabilities included in Level 3 are those with inputs requiring significant management judgment or estimation, such as the complex and subjective models and forecasts used to determine the fair value of financial instruments. Financial assets and liabilities measured at fair value as of March 31, 2015 and December 31, 2014, are summarized below: Fair value measurements using input type March 31, 2015 Level 1 Level 2 Level 3 Total Cash and cash equivalents $ $ - $ - $ Marketable securities - - Derivative liabilities - ) - ) Derivative liabilities - Phantom option - ) - ) $ $ ) $ - $ Fair value measurements using input type December 31, 2014 Level 1 Level 2 Level 3 Total Cash and cash equivalents $ $ - $ - $ Marketable securities - - Derivative assets - 29 - 29 Derivative liabilities - Phantom option - ) - ) $ $ ) $ - $ NOTE 4 – INVENTORIES Inventories are stated at the lower of cost or market, computed using the first-in, first-out method. Inventories consist of the following: March 31, December 31, Rawmaterials $ $ Work in process $ $ 13 NOTE 5 – SEGMENTS Operating segments are based upon our internal organization structure, the manner in which our operations are managed and the availability of separate financial information. Following the Acquisition, we have two operating segments: a defense and aerospace segment operated by Enertec and a mobile resource management segment operated by Micronet. The following table summarizes the financial performance of our operating segments: Three months ended March 31, 2015 Defense and aerospace Mobile resource management Consolidated Revenues from external customers $ $ $ Segment operating loss ) (1) (555 ) ) Not allocated expenses Finance expenses ) Consolidated loss before provision for income taxes $ ) Three months ended March 31, 2014 Defense and aerospace Mobile resource management Consolidated Revenuesfrom external customers $ $ $ Segment operating income (loss) ) (2) 257 Not allocated expenses Finance expenses ) Consolidated loss before provision for income taxes $ ) Includes $302 of intangible assets amortization, derived from Micronet and Micronet Inc. acquisitions. Includes $93 of intangible assets amortization, derived from Micronet and Micronet Inc.acquisitions. 14 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations. This Quarterly Report on Form 10-Q contains certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and other Federal securities laws, and is subject to the safe-harbor created by such Act and laws.In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential” or “continue,” the negative of such terms, or other variations thereon or comparable terminology.The statements herein and their implications are merely predictions and therefore inherently subject to known and unknown risks, uncertainties, assumptions and other factors that may cause actual results, performance levels of activity, or our achievements, or industry results to be materially different from those contemplated by the forward-looking statements.Such forward-looking statements appear in this Item 2 – “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and may appear elsewhere in this Quarterly Report on Form 10-Q and include, but are not limited to, statements regarding the following: · Demand for our products as well asfuture growth, either through internal efforts, development of new products, potential segments and markets or through acquisitions; · Leveraging our experience and other assets we possess to enhance Enertec’s (as definedbelow) product offerings; · · Integration of the vehicle business operation we acquired from Seller in 2014; Levels of research and development costs in the future; · Continuing control of at least a majority of Micronet's share capital; · The organic and non-organic growth of our business; · Our financing needs;and · The sufficiency of our capital resources. Our business and operations are subject to substantial risks, which increase the uncertainty inherent in the forward-looking statements contained or implied in this report.Except as required by law, we assume no obligation to update these forward-looking statements to reflect actual results or changes in factors or assumptions affecting such forward-looking statements. Further information on potential factors that could affect our business is described under the heading “Risk Factors” in Part I, Item 1A of our Annual Report on Form 10-K for the fiscal year ended December 31, 2014.Readers are also urged to carefully review and consider the various disclosures we have made in that report. The following discussion and analysis should be read in conjunction with the Consolidated Financial Statements and related notes included elsewhere in this Quarterly Report on Form 10-Q. 15 Overview We operate primarily through twoIsrael-basedcompanies, Enertecour wholly-owned subsidiary, and Micronet in which we have a controlling interest, whichdevelop, manufacture, integrate and globally market rugged computers, tablets and computer-based systems and instruments for the commercial, defense and aerospace markets. Our products, solutions and services are designed to perform in severe environments and battlefield conditions. Micronet is a publicly-traded company on the Tel Aviv Stock Exchange and operates in the growing commercial MRM market and is a global developer, manufacturer and provider of mobile computing platforms, designed for integration into fleet management and mobile workforce management solutions. In June 2014, Micronet expanded its MRM business and operations in the U.S. market through the acquisition of the Vehicle Business for $7.1 million, and as a result adding to its business U.S.-based facilities which include manufacturing and technical support infrastructure, sales and marketing capabilities as well as expanding its U.S. customer base and presence with local fleets and local MRM service providers. As a result of this acquisition, Micronet currently operates via its Israeli and U.S. facilities, the first located in Azur, Israel, near Tel Aviv, and the second located in Salt Lake City, Utah. Enertec operates in the defense and aerospace markets and designs, develops, manufactures and supplies various customized military computer-based systems, simulators, automatic test equipment and electronic instruments. Enertec’s solutions and systems are designed according to major aerospace integrators’ requirements and market technological needs and are integrated by them into critical systems such as command and control, missile fire control, maintenance of military aircraft and missiles for use by the Israeli Air Force, Israeli Navy and by foreign defense entities. Our strategy is driven and focused on continued internal growth through diligent efforts in our traditional growing markets with new technologies and innovative systems and products as well as the development of new potential segments and markets. Concurrent with our efforts to grow organically and in line with our strategy, we will continue to seek acquisitions that will complement and expand our product offerings, support our goals and increase our competitiveness. In order to help achieve our internal growth, we have expanded our production capacity and facilities. The acquisition of Micronet, or the Acquisition in September 2012 and the Transaction serve our strategy to grow our business, and we believe that Micronet and its research and development, proprietary know-how and manufacturing capabilities will assist us in expanding our capability to provide turnkey solutions of computer based complex systems and solutions for commercial defense and aerospace applications as well. We strongly believe that by utilizing Micronet as our commercial arm we will be able to access new market segments and new customers, thereby increase our overall customer base. Our current target markets, in which we concentrate the majority of our resources, include primarily the US market, the Israeli domestic market and the European market. Non-GAAP Financial Measures In addition to providing financial measurements based on generally accepted accounting principles in the U.S., or GAAP, we provide additional financial metrics that are not prepared in accordance with GAAP, or non-GAAP financial measures. Management uses non-GAAP financial measures, in addition to GAAP financial measures, to understand and compare operating results across accounting periods, for financial and operational decision making, for planning and forecasting purposes and to evaluate our financial performance. 16 Management believes that these non-GAAP financial measures reflect our ongoing business in a manner that allows for meaningful comparisons and analysis of trends in our business, as they exclude expenses and gains that are not reflective of our ongoing operating results. Managementalso believes that these non-GAAP financial measures provide useful information to investors in understanding and evaluating our operating results and future prospects in the same manner as management and in comparing financial results across accounting periods and to those of peer companies. The non-GAAP financial measures do not replace the presentation of our GAAP financial results and should only be used as a supplement to, not as a substitute for, our financial results presented in accordance with GAAP. The non-GAAP adjustments, and the basis for excluding them from non-GAAP financial measures, are outlined below: · Amortization of acquired intangible assets - We are required to amortize the intangible assets, included in our GAAP financial statements, related to the Transaction and the Acquisition. The amount of an acquisition’s purchase price allocated to intangible assets and term of its related amortization are unique to these transactions. The amortization of acquired intangible assets are non-cash charges. We believe that such charges do not reflect our operational performance. Therefore, we exclude amortization of acquired intangible assets to provide investors with a consistent basis for comparing pre- and post-transaction operating results. · Amortization of note discount and related expenses - These interest expenses are non-cash and are related to amortization of discount of the UTA Capital LLC, or UTA, notes, the last of which was paid in January 2015. Such expenses do not reflect our on-going operations and all of them were incurred up to the end of fiscal 2014. · Change in fair value of call options and warrants – The change in fair value of the call options relating to the Acquisition is recorded as interest expense. The change in fair value is derived primarily from Micronet’s share price and does not reflect our on-going operations. · Stock-based compensationis share based awards granted to certain individuals. They are non-cash and affected by our historical stock prices which are irrelevant to forward-looking analyses and are not necessarily linked toour operational performance. · Expenses related to the purchase of a business - These expenses relate directly to the purchase of the Vehicle Business and consist mainly of legal and accounting fees, finder’s fees and travel expenses. We believe that these expenses do not reflect our operational performance. Therefore, we exclude them to provide investors with a consistent basis for comparing pre- and post-Vehicle Business purchase operating results. 17 Non-GAAP Financial Measures (Cont.) The following table reconciles, for the periods presented, GAAP net loss attributable to Micronet Enertec to non-GAAP net income attributable to Micronet Enertec and GAAP loss per diluted share attributable to Micronet Enertec to non-GAAP net income per diluted share attributable to Micronet Enertec: Three months ended March 31, (Dollars in thousands, other than share and per share amounts) GAAP net loss attributable to Micronet Enertec Technologies, Inc. $ ) $ ) Amortization of acquired intangible assets 49 Change in fair value ofcall options and warrants - ) Amortization of note discount and related expenses - 50 Stock-based compensation 69 6 Income tax-effect of above non-GAAP adjustments (9 ) (7 ) Total Non-GAAP net loss attributable to Micronet Enertec Technologies, Inc. $ ) $ ) Non-GAAP netloss per diluted share attributable to Micronet Enertec Technologies, Inc. ) ) Shares used in per share calculations GAAP net lossper diluted share attributable to Micronet Enertec Technologies, Inc. ) ) Shares used in per share calculations Results of Operations Three Months Ended March 31, 2015 Compared to Three Months Ended March 31, 2014 Revenues for the three months ended March 31, 2015 were $5,679,000, compared to $5,567,000 for the three months ended March 31, 2014. This represents an increase of $112,000, or an increase of 2%, for the three months ended March 31, 2015. The increase in revenues for the three months ended March 31, 2015, is primarily due to an increase in Micronet’s revenues of $311,000 resulting from a new customer out of which $1,893,000 derived from the vehicles acquired business.Enertec's revenues decreased by $199,000, or 9%, for the three months ended March 31, 2015, compared to the previous period last year mainly due to an increase of New Israeli Shekel, or NIS, to U.S. dollar exchange rate. Total revenues related to the aerospace and defense segment for the three months ended March 31, 2015 were $2,033,000 as compared to $2,232,000 for the three months ended March 31, 2014. Total revenues related to the MRM segment for the three months ended March 31, 2015 were $3,646,000, as compared to $3,335,000 for the three months ended March 31, 2014. Gross profit decreased by $301,000, to $1,751,000, and represents 31% of the revenues for the three months ended March 31, 2015.This is in comparison to gross profit of $2,052,000 which represented 37% of the revenues for the three months ended March 31, 2014. Micronet’s gross profit decreased from 47% in the three months ended March 31, 2014 to 35%, for the same period in 2015, mainly due to a reduction of unit volumes and prices to a major client.Enertec’s gross profit increased from 21% in the three months ended March 31, 2014 to 23% for the same period in 2015, mainly due to changes in product mix. Selling and Marketing Selling and marketing costs are part of operating expenses. Selling and marketing costs for the three months ended March 31, 2015 were $469,000, compared to $391,000 for the three months ended March 31, 2014. This represents an increase of $78,000, or 20% for the three months ended March 31, 2015. The increase is primarily due to enlarging the sales team ofour MRM operation in the United States and travel expenses. 18 General and Administrative General and administrative costs are part of operating expenses. General and administrative costs for the three months ended March 31, 2015 were $1,111,000, compared to $884,000 for the three months ended March 31, 2014. This represents an increase of $227,000, or 26% for the three months ended March 31, 2015. The increaseis mainly due to approximately $232,000 of costs related to the initial consolidation of the Vehicle Business for the three months ended March 31,2015. Research and Development Costs Research and development costs are part of operating expenses. Research and development costs which include mainly wages,materials and sub-contractors, for the three months ended March 31, 2015 were $743,000,compared to $744,000 for the three months ended March 31, 2014. Net Loss from operations Our net loss from operations for the three months ended March 31, 2015 was $874,000, compared to net loss from operations of $60,000 for the three months ended March 31, 2014. The decrease is mainly a result of the decrease in gross profit and increase in operating expenses as described above. Finance Expenses, net Finance expenses net, for the three months ended March 31, 2015 were $92,000, compared to expenses of $46,000 for the three months ended March 31, 2014. This represents an increase of $46,000 for the three months ended March 31, 2015. The increase in finance expense in the three months ended March 31, 2015 as compared to the three months ended March 31, 2014 was primarily due to increases in interest and bank commissions as well as exchange rate differences. Net Income (loss) attributed to Micronet Enertec Technologies, Inc. Our net loss attributed to Micronet Enertec Technologies, Inc. was $705,000 in the three monthsended March 31, 2015, compared to net loss of $332,000 in the three months ended March 31, 2014.This represents an increasein net loss of $373,000 as compared to the sameperiod last year. The increase in net loss is attributed to the decrease in revenues and in gross profit margin as mentioned above. Liquidity and Capital Resources The Company finances its operations through current revenues, loans and securities offerings. The loans are divided into various bank loans, as described below. Liquidity and Capital Resources (Cont.) As of March 31, 2015, our total cash and cash equivalents and marketable securities balance was $12,275,000 (of which marketable securities amounted to $6,224,000), as compared to $14,998,000(of which marketable securities amounted to $6,406,000), as of December 31, 2014. This reflects a decrease of $2,723,000 in cash and cash equivalents and marketable securities. The decrease in cash and cash equivalents is primarily a result of repayments of loans to banks and others and due to our negative operating cash flow for the period. 19 In connection with our acquisition ofthe Vehicle Business, Micronet entered into a loan agreement, or the FIBI Loan Agreement, with the First International Bank of Israel, or FIBI. Under this agreement, FIBI loaned Micronet $4,085,000 for the financing of this acquisition.Pursuant to the terms of the FIBI Loan Agreement, $2,425,000 of the loan bears interest at a quarterly adjustable rate of Prime plus 1.5 percent (3.75% percent as of the date of the loan), or the Long Term Portion. The Long Term Portion plus interest is due and payable in twelve equal consecutive quarterly installments beginning on August 29, 2014. The balance of the loan in the amount of $2,425,000 bears interest at a quarterly adjustable rate of Prime plus 1.2% (3.45% as of the date of the loan), or the Short Term Portion. The Short Term Portion is due and payable within one year from the date of the loan, and the interest on the Short Term Portion is due and payable every quarter beginning on August 29, 2014. The loan is secured mainly by a floating charge against Micronet’s assets and a mortgage on a building owned by Micronet. The loan is subject to customary covenants, terms, conditions, events of default and certain pre-payment provisions. As of March 31, 2015, the balance on this loan (the Long Term Portion and the Short Term Portion) was approximately 3,747,000 and the interest rates were Prime plus 1.2% and Prime plus 1.5% for the Short Term Portion and the Long Term Portion, respectively. On June 17, 2014, Enertec entered into a loan agreement, or the Mercantile Loan Agreement, with Mercantile Discount Bank Ltd., or Mercantile Bank, pursuant to which Mercantile Bank agreed to loan the Company approximately $3,631,000 on certain terms and conditions, or the Mercantile Loan. The proceeds of the Mercantile Loan were used by the Company: (1) to refinance previous loans granted to the Company in the amount of approximately $1,333,000; (2) to complete the purchase by the Company, via Enertec, of 1.2 million shares of Micronet constituting 6.3% of the issued and outstanding shares of Micronet; and (3) for working capital and general corporate purposes. Pursuant to the terms of the Mercantile Loan Agreement: (1) approximately $3,050,000 of the Mercantile Loan bears interest at a quarterly adjustable rate of Prime plus 2.45 percent, or the Mercantile Long Term Portion, and (2) approximately $581,000 of the Mercantile Loan bears interest at a quarterly adjustable rate of Prime plus 1.7 percent, or the Mercantile Short Term Portion. The Mercantile Long Term Portion is due and payable in five equal consecutive annual installments beginning on July 1, 2015, and the interest on the Mercantile Long Term Portion is due and payable in ten equal consecutive annual installments beginning at January 1, 2015. The Mercantile Short Term Portion in the amount of approximately $581,000 bears interest of Prime plus 1.7%. The Mercantile Loan is secured mainly by (1) a negative pledge on Enertec’s assets, (2) a pledge of Enertec’s financial deposits which shall be equal to 25% of Enertec’s outstanding credit balance, and (3) a fixed charge of Micronet shares at such value equal to at least 200% of the outstanding net balance of the Mercantile Loan. The Mercantile Loan is subject to customary covenants, terms, conditions, events of default and certain pre-payment provisions. As of March 31, 2015, the balance on the Mercantile Loan was $3,130,000 and the interest rates were Prime plus 2.45% and Prime plus 1.7%. for the Mercantile Long Term Portion and the Mercantile Short Term Portion, respectively. Liquidity and Capital Resources (Cont.) Pursuant to the terms of the Mercantile Loan Agreement, the parties agreed to grant Mercantile Bank a five-year Phantom Stock Option, or the Phantom Stock Option, pursuant to which Mercantile Bank is entitled to participate in the future appreciation of the Company’s shares and receive a cash amount equal to the increase in the value of the shares underlying the Phantom Stock Option on certain terms and conditions. The Phantom Stock Option allows Mercantile Bank to theoretically exercise, on a cashless basis, options to purchase 1,144,820 shares of Micronet, or the Option Shares, and to receive a cash amount equal to the difference between approximately 4 million NIS, (representing 110 percent of the average market value of Micronet Option Shares during the 30 trading days prior to the date of the Mercantile Loan) and the actual market price of such Option Shares on the date of the exercise of the Phantom Stock Option. Pursuant to the Mercantile Loan Agreement, the parties further agreed that the potential gain to Mercantile Bank resulting from the Phantom Stock Option shall not exceed NIS 3,000,000. In the event the Mercantile Loan is repaid prior to the third anniversary of the Mercantile Loan, the gain to Mercantile Bank resulting from the Phantom Stock Option shall not exceed NIS 2,000,000. As of the date of the Mercantile Loan the exercise price of the Phantom Stock Options is higher than the market price of the Option Shares. As of March 31, 2015, the fair value of this Phantom Stock Option was $44,000. 20 On July 12, 2011, the Company entered into a Note and Warrant Purchase Agreement with UTA or the Purchase Agreement (and as amended by that certain letter agreement dated as of August 16, 2011, and as further amended by that certain Second Amendment to Note and Warrant Purchase Agreement dated as of August 31, 2011 and that certain Third Amendment to Note and Warrant Purchase Agreement dated as of November 24, 2011, the Original Agreement), pursuant to which UTA agreed to provide financing to the Company on a secured basis. In May 2013, the Company repaid certain of its debt to UTA in the total amount of $1,185,000. In June 2013, the Company repaid additional amounts of its debt to UTA pursuant to a certain promissory note in a total amount of $282,000. On January 10, 2015, the Company repaid all of its remaining debt to UTA in the amount of $1,000,000. As of March 31, 2015, our total current assets were $32,683,000, as compared to $37,057,000at December 31, 2014. The decrease is mainly due to the decrease in cash and cash equivalents and in trade accounts receivable as described above. Our trade accounts receivable at March 31, 2015 were $12,744,000 as compared to $14,152,000at December 31, 2014. The decrease is primarily due to the reduction in accounts receivable of Enertec as a result of a decrease in revenues for the three months ended March 31, 2015 As of March 31, 2015, our working capital was $15,386,000, as compared to $16,434,000at December 31, 2014. The decrease in the working capital is primarily due to the decrease in cash and cash equivalents and decrease in trade accounts receivable. As of March 31, 2015, our total debt was $13,521,000 as compared to $14,335,000at December 31, 2014. The decrease in our total debt is mainly due to the repayment all of the remaining debt to UTA in the amount of $1,000,000 on January 10, 2015. Liquidity and Capital Resources (Cont.) Our bank and other debt is composed of short-term loans amounting to $9,964,000 as of March 31, 2015 compared to $10,416,000at December 31, 2014, and long-term loans amounting to $3,557,000 as of March 31, 2015 compared to $3,919,000at December 31, 2014. The decrease ismainly due repayments of loans to various banks and others. 21 Our debt includes our bank debt described above and a working capital credit facility: · · Our bank debt is composed of short-term loans to Enertec Electronics Ltd, Enertecand Micronet amounting to $9,964,000 as of March 31, 2015 compared to $9,416,000 at December 31, 2014, and long-term loans amounting to $3,557,000 as of March 31, 2015 compared to $3,919,000 at December 31, 2014.The short-term loans bear interest rates between Israeli prime (currently 1.65%) plus 0.7% to 2.45%.The long-term loans have maturity dates between May 2017 and July 2019 and bear interest rates between Israeli Prime plus 1.25% to 2.45%. Enertec has covenanted under its bank loans, among other things that (1) its shareholder’s equity according to its financial statements will not fall below NIS 17 million, and (2) its shareholder’s equity will not be lower than 30% of the total liabilities on its balance sheet.Enertec has met all of its bank covenants as of March 31, 2015. · Enertec Electronics has covenanted under its bank loan mainly that the Company will present separate financial statements equity of not less than 32.5% of total assets. Enertec Electronics has met all of its bank covenants as of March 31, 2015. · In addition, Micronet has undertaken under its bank loan documents the following primary financial covenants: (1) The aggregate amount of deposits and marketable securities will not less than 85% of the aggregate amount of the loans; (2) a minimum equity of NIS 30 million and (3) total solvency ratio of not less than 30%. Micronet has met all of its bank covenants as of March 31, 2015. Financing Needs Although we currently do not have any material commitments for capital expenditures, we expect our capital requirements to increase over the next several years as we continue to support the organic and non-organic growth of our business. Among other activities, we plan to develop, manufacture and market larger-scale solutions, support our growing manufacturing and finance needs, continue the development and testing of our suite of products and systems, increase management, marketing and administration infrastructure, and embark on developing in-house business capabilities and facilities. Our future liquidity and capital funding requirements will depend on numerous factors, including but not limited to (1) the levels and costs of our research and development initiatives, (2) the cost of hiring, training and certifyingadditional highly skilled professionals (mainly engineers and technicians), and maintaining ourmanagement including sales and marketing personnel to promote our products, and (3) the cost and timing of the expansion of our development, manufacturing and marketing efforts. Financing Needs (Cont.) The Company had paid the balance of the UTA loan in January 2015 and expects to pay off the current portion of certain bank loans in the amount $1,492,000 using its cash flow from operations or possibly additional debt or equity financings. The Company has an effective Form S-3registration statement, filed under the Securities Act of 1933, as amended, with the Securities and Exchange Commission using a “shelf” registration process. Under this shelf registration process, the Company may, from time to time, sell common stock, warrants or units in one or more offerings up to a total dollar amount of $30 million. 22 Based on our current business plan, we anticipate that our existing cash balances and cash generated from future sales will be sufficient to permit us to conduct our operations and to carry out our contemplated business plans for the next twelve months. However, we believe that we may need to raise additional funds if we want tomaterially decrease our dependence on our existing cash and other liquidity resources. Currently, the only external sources of liquidity are our banks, and we may seek additional financing from them or through securities offerings, to expand our operations, using new capital to develop new products, enhance existing products or respond to competitive pressures. However, we may also undertake additional debt or equity financings (including sales of common stock, warrants or units under our shelf registration statement) to better enable us to grow and meet our future operating and capital requirements. There is no assurance that we will be able to consummate such offerings on favorable terms or at all. Off-Balance Sheet Arrangements We do not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect that is material to investors on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources. Item 3. Quantitative and Qualitative Disclosures about Market Risks. Not applicable Item 4. Controls and Procedures. Evaluation of Disclosure Controls and Procedures Pursuant to Rule 13a-15(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company carried out an evaluation with the participation of the Company’s management, including Mr. David Lucatz, the Company’s Chief Executive Officer (“CEO”) and Mrs. Tali Dinar, the Company’s Chief Financial Officer (“CFO”), of the effectiveness of the Company’s disclosure controls and procedures (as defined under Rule 13a-15(e) or Rule 15d-15(e) under the Exchange Act) as of March 31, 2015. Based upon that evaluation, the Company’s CEO and CFO concluded that the Company’s disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company in the reports that the Company files or submits under the Exchange Act, is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to the Company’s management, including the Company’s CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure. Changes in internal control over financial reporting No change occurred in the Company’s internal control over financial reporting during the quarterly period ended March 31, 2015 that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. 23 PART II- OTHER INFORMATION Item 5.Other Information On May 13, 2015, the Board of Directors (the “Board”) of the Company appointed Mr. Eyal Leibovitz as its Chief Financial Officer effective July 12, 2015 and approved the terms of his employment pursuant to the Employment Agreement between the Company and Mr. Leibovitz dated May 13, 2015 (the “Employment Agreement”). Mr. Leibovitz brings extensive and proven experience in similar positions with global companies operating in international markets and related industries. Prior to joining the Company, Mr. Leibovitz served for 4 years (2011-2015) as Chief Financial Officer of N-trig Inc. a provider of touch and pen (electronic inking) solutions,and prior to that for 4 years (2007-20011) as Chief Financial Officer of Kamada Ltd a biopharmaceutical company, currently traded on NASDAQ (KMDA) and the Tel Aviv Stock Exchange. Mr. Leibovitz holds a B.A. in Business Administration from City University of New York, USA. Pursuant to the Employment Agreement, Mr. Leibovitz will receive: (i) a monthly salary reflecting company cost of 59,000 NIS (approximately US$15,325 currently); (ii) shall be entitled to a car; (iii) shall be entitled to receive bonuses and options as shall be determined by the Board in consultation with the Company’s Chief Executive Officer; and (iv) shall be entitled to customary Israeli pension funds and other social benefits. The Employment Agreement is not limited to a certain duration. The Employment Agreement is terminable by either party at any time by providing 90 days’ prior written notice. The Employment Agreement also contains customary confidentiality, non-competition and non-solicitation provisions. No family relationships exist between Mr. Leibovitz and any of the Company's directors or other executive officers. There are no arrangements between Mr. Leibovitz and any other person pursuant to which Mr. Leibovitz was selected as an officer, nor are there any transactions to which the Company is or was a participant and in which Mr. Leibovitz has a material interest subject to disclosure under Item 404(a) of Regulation S-K. Mrs. Tali Dinar, former Chief Financial Officer of the Company shall remain in the position as Chief Financial Officer of Enertec Electronics Ltd, the Company’s wholly-owned subsidiary, and was appointed on May 13, 2015 as Chief Financial Officer of Micronet Ltd in which the Company has a controlling interest. Item 6. Exhibits. Exhibit Number Description Composite Copy of the Certificate of Incorporation of the Company, as amended to date (Incorporated by reference to Exhibit 4.1 of the Company's Registration Statement on Form S-8 (File No. 333-199752), filed with the Securities and Exchange Commission on October 31, 2014.). Amended and Restated Bylaws of the Company (Incorporated by reference to Exhibit 3.5 of Amendment No. 2 to our Registration Statement on Form S-1 (File No. 333-185470), filed with the Securities and Exchange Commission on March 18, 2013). 31.1* Rule 13a-14(a) Certification of Chief Executive Officer. 31.2* Rule 13a-14(a) Certification of Chief Financial Officer. 32.1** Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350. 32.2** Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350. 101* The following materials from Micronet Enertec Technologies, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, formatted in XBRL (Extensible Business Reporting Language): (i) Condensed Consolidated Balance Sheets, (ii) Condensed Consolidated Statements of Income, (iii) Condensed Consolidated Statements of Comprehensive Income, (iv) Condensed Consolidated Statements of Cash Flows, and (v) Notes to Condensed Consolidated Financial Statements. * Filed herewith ** Furnished herewith 24 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. MICRONET ENERTEC TECHNOLOGIES, INC. Date: May 14, 2015 By: /s/David Lucatz Name: David Lucatz Title: Chairman, President and Chief Executive Officer (Principal Executive Officer) Date: May 14, 2015 By: /s/Tali Dinar Name: Tali Dinar Title:Secretary and Chief Financial Officer (Principal Financial Officer) 25 EXHIBIT INDEX Exhibit Number Description Composite Copy of the Certificate of Incorporation of the Company, as amended to date (Incorporated by reference to Exhibit 4.1 of the Company's Registration Statement on Form S-8 (File No. 333-199752), filed with the Securities and Exchange Commission on October 31, 2014.). Amended and Restated Bylaws of the Company (Incorporated by reference to Exhibit 3.5 of Amendment No. 2 to our Registration Statement on Form S-1 (File No. 333-185470), filed with the Securities and Exchange Commission on March 18, 2013). 31.1* Rule 13a-14(a) Certification of Chief Executive Officer. 31.2* Rule 13a-14(a) Certification of Chief Financial Officer. 32.1** Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350. 32.2** Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350. 101* The following materials from Micronet Enertec Technologies, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, formatted in XBRL (Extensible Business Reporting Language): (i) Condensed Consolidated Balance Sheets, (ii) Condensed Consolidated Statements of Income, (iii) Condensed Consolidated Statements of Comprehensive Income, (iv) Condensed Consolidated Statements of Cash Flows, and (v) Notes to Condensed Consolidated Financial Statements. * Filed herewith ** Furnished herewith 26

Name: Commission Directive 2005/57/EC of 21 September 2005 amending Council Directive 91/414/EEC to include MCPA and MCPB as active substances (Text with EEA relevance) Type: Directive Subject Matter: means of agricultural production; marketing Date Published: 2005-09-22; 2006-10-18 22.9.2005 EN Official Journal of the European Union L 246/14 COMMISSION DIRECTIVE 2005/57/EC of 21 September 2005 amending Council Directive 91/414/EEC to include MCPA and MCPB as active substances (Text with EEA relevance) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (1), and in particular Article 6(1) thereof, Whereas: (1) Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market (2) establishes a list of active substances to be assessed, with a view to their possible inclusion in Annex I to Directive 91/414/EEC. That list includes MCPA and MCPB. (2) For those active substances the effects on human health and the environment have been assessed in accordance with the provisions laid down in Regulation (EEC) No 3600/92 for a range of uses proposed by the notifiers. By Commission Regulation (EC) No 933/94 of 27 April 1994 laying down the active substances of plant protection products and designating the rapporteur Member State for the implementation of Regulation (EEC) No 3600/92 (3), Italy was designated as rapporteur Member State. On 5 April 2001 and 19 December 2001 Italy submitted the relevant assessment reports and recommendations to the Commission in accordance with Article 7(1)(c) of Regulation (EEC) No 3600/92. (3) The assessment reports have been reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health. The reviews were finalised on 15 April 2005 in the format of the Commission review reports for MCPA and MCPB. (4) The reviews of MCPA and MCPB did not reveal any open question to be addressed by the Scientific Committee on Plants or the European Food Safety Authority (EFSA) which has taken over the role of the latter. (5) It has appeared from the various examinations made that plant protection products containing MCPA or MCPB may be expected to satisfy, in general, the requirements laid down in Article 5(1)(a) and (b) of Directive 91/414/EEC, in particular with regard to the uses which were examined and detailed in the Commission review reports. It is therefore appropriate to include these active substances in Annex I, in order to ensure that in all Member States the authorisations of plant protection products containing these active substances can be granted in accordance with the provisions of that Directive. (6) A reasonable period should be allowed to elapse before an active substance is included in Annex I in order to permit Member States and the interested parties to prepare themselves to meet the new requirements which will result from the inclusion. (7) Without prejudice to the obligations defined by Directive 91/414 as a consequence of including an active substance in Annex I, Member States should be allowed a period of six months after inclusion to review existing authorisations of plant protection products containing MCPA or MCPB to ensure that the requirements laid down by Directive 91/414/EEC, in particular in its Article 13 and the relevant conditions set out in Annex I, are satisfied. Member States should vary, replace or withdraw, as appropriate, existing authorisations in accordance with the provisions of Directive 91/414/EEC. By derogation from the above deadline, a longer period should be provided for the submission and assessment of the complete Annex III dossier of each plant protection product for each intended use in accordance with the uniform principles laid down in Directive 91/414/EEC. (8) The experience gained from previous inclusions in Annex I to Directive 91/414/EEC of active substances assessed in the framework of Regulation (EEC) No 3600/92 has shown that difficulties can arise in interpreting the duties of holders of existing authorisations in relation to access to data. In order to avoid further difficulties it therefore appears necessary to clarify the duties of the Member States, especially the duty to verify that the holder of an authorisation demonstrates access to a dossier satisfying the requirements of Annex II to that Directive. However, this clarification does not impose any new obligations on Member States or holders of authorisations compared to the directives which have been adopted until now amending Annex I. (9) It is therefore appropriate to amend Directive 91/414/EEC accordingly. (10) The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health, HAS ADOPTED THIS DIRECTIVE: Article 1 Annex I to Directive 91/414/EEC is amended as set out in the Annex to this Directive. Article 2 Member States shall adopt and publish by 31 October 2006 at the latest the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive. They shall apply those provisions from 1 November 2006. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. Article 3 1. Member States shall in accordance with Directive 91/414/EEC, where necessary, amend or withdraw existing authorisations for plant protection products containing MCPA or MCPB as active substances by 31 October 2006. By that date, they shall in particular verify that the conditions in Annex I to that Directive relating to MCPA and MCPB respectively are met, with the exception of those identified in part B of the entry concerning those active substances, and that the holder of the authorisation has, or has access to, a dossier satisfying the requirements of Annex II to that Directive in accordance with the conditions of Article 13. 2. By derogation from paragraph 1, for each authorised plant protection product containing MCPA or MCPB as either the only active substance or as one of several active substances all of which were listed in Annex I to Directive 91/414/EEC by 30 April 2006 at the latest, Member States shall re-evaluate the product in accordance with the uniform principles provided for in Annex VI to Directive 91/414/EEC, on the basis of a dossier satisfying the requirements of Annex III to that Directive and taking into account part B of the entry in Annex I to that Directive concerning MCPA and MCPB respectively. On the basis of that evaluation, they shall determine whether the product satisfies the conditions set out in Article 4(1)(b), (c), (d) and (e) of Directive 91/414/EEC. Following that determination Member States shall: (a) in the case of a product containing MCPA or MCPB as the only active substance, where necessary, amend or withdraw the authorisation by 30 April 2010 at the latest; or (b) in the case of a product containing MCPA or MCPB as one of several active substances, where necessary, amend or withdraw the authorisation by 30 April 2010 or by the date fixed for such an amendment or withdrawal in the respective Directive or Directives which added the relevant substance or substances to Annex I to Directive 91/414/EEC, whichever is the latest. Article 4 This Directive shall enter into force on 1 May 2006. Article 5 This Directive is addressed to the Member States. Done at Brussels, 21 September 2005. For the Commission Markos KYPRIANOU Member of the Commission (1) OJ L 230, 19.8.1991, p. 1. Directive as last amended by Regulation (EC) No 396/2005 of the European Parliament and of the Council (OJ L 70, 16.3.2005, p. 1). (2) OJ L 366, 15.12.1992, p. 10. Regulation as last amended by Regulation (EC) No 2266/2000 (OJ L 259, 13.10.2000, p. 10). (3) OJ L 107, 28.4.1994, p. 8. Regulation as last amended by Regulation (EC) No 2230/95 (OJ L 225, 22.9.1995, p. 1). ANNEX The following entry shall be added at the end of the table in Annex I to Directive 91/414/EEC: No Common name, identification numbers IUPAC name Purity (1) Entry into force Expiration of inclusion Specific provisions 108 MCPA CAS No 94-74-6 CIPAC No 2 4-chloro-o-tolyloxyacetic acid ‰ ¥ 930 g/kg 1 May 2006 30 April 2016 PART A Only uses as herbicide may be authorised PART B For the implementation of the uniform principles of Annex VI, the conclusions of the review report on MCPA, and in particular Appendices I and II thereof, as finalised in the Standing Committee on the Food Chain and Animal Health on 15 April 2005 shall be taken into account Member States should pay particular attention to the potential for groundwater contamination, when the active substance is applied in regions with vulnerable soil and/or climatic conditions. Conditions of authorisation should include risk mitigation measures, where appropriate Member States must pay particular attention to the protection of aquatic organisms and must ensure that the conditions of authorisation include risk mitigation measures, where appropriate, such as buffer zones 109 MCPB CAS No 94-81-5 CIPAC No 50 4-(4-chloro-o-tolyloxy)butyric acid ‰ ¥ 920 g/kg 1 May 2006 30 April 2016 PART A Only uses as herbicide may be authorised PART B For the implementation of the uniform principles of Annex VI, the conclusions of the review report on MCPB, and in particular Appendices I and II thereof, as finalised in the Standing Committee on the Food Chain and Animal Health on 15 April 2005 shall be taken into account Member States should pay particular attention to the potential for groundwater contamination, when the active substance is applied in regions with vulnerable soil and/or climatic conditions. Conditions of authorisation should include risk mitigation measures, where appropriate Member States must pay particular attention to the protection of aquatic organisms and must ensure that the conditions of authorisation include risk mitigation measures, where appropriate, such as buffer zones (1) Further details on identity and specification of active substance are provided in the review report.

Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 I, John H. Zoeller, certify that: (1) I have reviewed this annual report on Form 10-K of SB Partners; Based on my knowledge, this annual report does not contain any untrue statement of 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 year covered by this annual report; 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; The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e) and 15d-15(e) and internal controls over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; (b) designed such internal control over financial reporting, 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 annual report based on such evaluation; and (d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financing reporting; and The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Dated:June 14, 2012 By: Principal Financing & Accounting Officer /s/ John H. Zoeller John h. Zoeller Chief Financial Officer

Exhibit 10.10 FORM OF ASSET REPRESENTATIONS REVIEW AGREEMENT BMW VEHICLE LEASE TRUST 2016-2, as Issuer and BMW FINANCIAL SERVICES NA, LLC, as Servicer and CLAYTON FIXED INCOME SERVICES LLC, as Asset Representations Reviewer _____________________________ Dated as of October 13, 2016 _____________________________     ASSET REPRESENTATIONS REVIEW AGREEMENT This ASSET REPRESENTATIONS REVIEW AGREEMENT (this “Agreement”), entered into as of the 13th day of October 2016, by and among BMW VEHICLE LEASE TRUST 2016-2, a Delaware statutory trust (the “Issuer”), BMW FINANCIAL SERVICES NA, LLC, a Delaware limited liability company  (the “Servicer”), and CLAYTON FIXED INCOME SERVICES LLC, a Delaware limited liability company (the “Asset Representations Reviewer”). WHEREAS, the Issuer desires to engage the Asset Representations Reviewer to perform reviews of certain 2016-2 Leases for compliance with certain representations and warranties made with respect thereto. NOW, THEREFORE, in consideration of the mutual agreements herein contained and hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: ARTICLE I. DEFINITIONS Section 1.01       Definitions. Any capitalized terms used and not defined in this Agreement shall have the meanings ascribed to such terms in the Indenture or the Servicing Supplement, as applicable.  Whenever used in this Agreement, the following words and phrases “Annual Fee” has the meaning stated in Section 4.01(a). “ARR Indemnified Person” has the meaning stated in Section 5.04. “Client Records” has the meaning stated in Section 3.13. “Confidential Information” has the meaning stated in Section 7.01(b). “Disqualification Event” has the meaning stated in Section 6.01. “Eligible Representations” shall mean those representations identified within the “Tests” included in Exhibit A. “Indemnified Person” has the meaning stated in Section 5.07. “Indenture” means the Indenture, dated as of October 13, 2016, between the Issuer and the Indenture Trustee, as the same may be amended, supplemented or modified from time to time. “Indenture Trustee” means Citibank, N.A. “Initial Review Period” has the meaning stated in Section 3.06. 1 “Owner Trustee” means Wilmington Trust, National Association, not in its individual capacity but solely as owner trustee of the Issuer. “Personally Identifiable Information” has the meaning stated in Section 7.02. “Privacy Laws” has the meaning stated in Section 7.02(a). “Review” means the performance by the Asset Representations Reviewer of the Tests for each Review Asset in accordance with the terms of Section 3.05. “Review Assets” means those 2016-2 Leases identified by the Servicer as requiring a Review by the Asset Representations Reviewer following receipt of a Review Notice. “Review Fee” has the meaning stated in Section 4.01(b). “Review Notice” means a notice delivered to the Asset Representations Reviewer pursuant to Section 12.02 of the Indenture. “Review Materials” means the applicable documents, data, and other information listed in Exhibit A. “Review Report” means, with respect to a Review, the related report prepared by the Asset Representations Reviewer in accordance with the terms of Section 3.08. “Servicing Supplement” means the 2016-2 Servicing Supplement, dated as of October 13, 2016, among the Servicer, Financial Services Vehicle Trust and BMW Manufacturing L.P., as the same may be amended, supplemented or modified from time to time. “Sponsor” means BMW Financial Services NA, LLC. “Test Fail” has the meaning stated in Section 3.05. “Test Pass” has the meaning stated in Section 3.05. “Tests” means, with respect to any 2016-2 Lease or 2016-2 Vehicle, the procedures listed in Exhibit A with respect thereto. “Trust Agreement” means the Amended and Restated Trust Agreement, dated as of October 13, 2016, between BMW Auto Leasing LLC and the Owner Trustee, as the same may be amended, supplemented or modified from time to time. “Underwriters” means Credit Suisse Securities (USA) LLC, Mizuho Securities USA Inc., SG Americas Securities, LLC, Lloyds Securities Inc. and RBC Capital Markets, LLC. 2 ARTICLE II. ENGAGEMENT; ACCEPTANCE Section 2.01       Engagement; Acceptance. The Issuer hereby engages Clayton Fixed Income Services LLC to act as the Asset Representations Reviewer for the Issuer.  Clayton Fixed Income Services LLC hereby accepts the engagement and agrees to perform the obligations of the Asset Representations Reviewer on the terms stated in this Agreement. Section 2.02       Eligibility of Asset Representations Reviewer. The Asset Representations Reviewer is a Person who (i) is not affiliated with the Issuer, the Servicer, the Depositor, the Indenture Trustee, the Owner Trustee or any of their respective affiliates and (ii) was not engaged, or affiliated with a Person that was, engaged by the Sponsor or the Underwriters to perform pre-closing due diligence work on the 2016-2 Leases; and (iii) is not disqualified by the Securities and Exchange Commission or other applicable regulatory authority from acting as the Asset Representations Reviewer hereunder.  The Asset Representations Reviewer will promptly notify the Issuer and the Servicer if it no longer satisfies, or it reasonably expects that it will no longer satisfy, the conditions described in the immediately preceding sentence. Section 2.03       Independence of the Asset Representations Reviewer. The Asset Representations Reviewer will be an independent contractor and will not be subject to the supervision of the Issuer for the manner in which it accomplishes the performance of its obligations under this Agreement.  Unless expressly authorized by the Issuer, the Asset Representations Reviewer will have no authority to act for or represent the Issuer and will not be considered an agent of the Issuer.  Nothing in this Agreement will make the Asset Representations Reviewer and the Issuer members of any partnership, joint venture or other separate entity or impose any liability as such on any of them.  For the avoidance of doubt, the Indenture Trustee will not be responsible for monitoring the performance by the Asset Representations Reviewer of its ARTICLE III. DUTIES OF THE ASSET REPRESENTATIONS REVIEWER Section 3.01       Review Scope. The Reviews are designed to determine whether certain 2016-2 Leases were in compliance with certain representations made about them in the Servicing Supplement. The Reviews are not designed to determine any of the following: (a) reason for delinquency; 3 (b) creditworthiness of the Lessees, either at the time of the Review or as of the time of the origination of the related 2016-2 Leases; (c) overall quality of any Review Asset; (d) whether the Servicer has serviced any 2016-2 Lease in compliance with the terms of the Servicing Supplement; (e) whether noncompliance with the representations or warranties constitutes a breach of the Servicing Supplement; (f) whether the 2016-2 Leases complied with the representations and warranties set forth in the Servicing Supplement, except as expressly described in this Agreement; or (g) establish cause, materiality or recourse for any failed Test as described in Section 3.05. Section 3.02       Review Notices. Upon receipt of a Review Notice from the Indenture Trustee, the Asset Representations Reviewer will start a Review.  Within ten (10) Business Days of its receipt of a Review Notice, the Servicer will provide a list of the Review Assets to the Asset Representations Reviewer and the Indenture Trustee. The Asset Representations Reviewer will not be obligated to start a Review until a Review Notice and the related list of Review Assets is received by it.  The Asset Representations Reviewer is not obligated to verify (i) whether the Indenture Trustee properly determined that a Review Notice was required or (ii) the accuracy or completeness of the list of Review Assets provided by the Servicer. Section 3.03       Review Materials. Within sixty (60) days of the delivery of a Review Notice, the Servicer will provide the Asset Representations Reviewer with access to the Review Materials for all of the Review Assets in one or more of the following ways: (i) by providing access to the Servicer’s systems, either remotely or at an office of the Servicer, (ii) by electronic posting to a password-protected website to which the Asset Representations Reviewer has access, (iii) by providing originals or photocopies at an office of the Servicer or (iv) in another manner agreed by the Servicer and the Asset Representations Reviewer.  The Servicer may redact or remove Personally Identifiable Information from the Review Materials to the extent such redaction or removal does not change the meaning or usefulness of the Review Materials.  The Asset Representations Reviewer shall be entitled to rely in good faith, without independent investigation or verification, that the Review Materials are accurate and complete in all material respects, and not misleading in any material respect. Section 3.04       Missing or Insufficient Review Materials. 4 The Asset Representations Reviewer will review the Review Materials to determine if any Review Materials are missing or insufficient for the Asset Representations Reviewer to perform any Test.  If the Asset Representations Reviewer determines that there are missing or insufficient Review Materials, the Asset Representations Reviewer will notify the Servicer promptly, and in any event no less than twenty (20) Business Days before the end of the Initial Review Period.  The Servicer will have fifteen (15) Business Days from receipt of such notification to give the Asset Representations Reviewer access to the missing Review Materials or other documents or information to correct any such insufficiency.  If the missing or insufficient Review Materials or other documents or information have not been provided by the Servicer within such fifteen (15) Business Day period, the related review of such Review Asset will be considered completed and the Review Report will report a Test Fail for each Test in respect of which such missing or insufficient Review Materials is necessary to determine whether a Test Pass result is appropriate. Section 3.05       The Asset Representations Review. For each Review, the Asset Representations Reviewer will perform, for each related Review Asset, the applicable procedures listed under “Tests” in Exhibit A for each Eligible Representation, using the Review Materials necessary to perform the procedures listed under such Test in Exhibit A.  For each Test and Review Asset, the Asset Representations Reviewer will determine if the Test has been satisfied (a “Test Pass”) or if the Test has not been satisfied (a “Test Fail”). If a Review Asset was included in a prior Review, the Asset Representations Reviewer will not conduct additional Tests on such Review Asset, and will include the previously reported Test results in the Review Report for the current Review.  If the same Test is required for more than one Eligible Representation, the Asset Representations Reviewer will only perform the Test once for each Review Asset, and will report the results of the Test for each applicable Eligible Representation on the Review Report. Section 3.06       Review Period. The Asset Representations Reviewer will complete the Review of all applicable Review Assets within sixty (60) days after having received access to the related Review Materials pursuant to Section 3.03 (the “Initial Review Period”).  However, if additional Review Materials are provided to the Asset Representations Reviewer in respect of any Review Assets, as described in Section 3.04, the Initial Review Period will be extended for an additional thirty (30) days in respect of any such Review Assets. Section 3.07       Completion of Review for Certain Review Assets. Following the delivery of the list of the Review Assets and before the delivery of the Review Report by the Asset Representations Reviewer, the Servicer may notify the Asset Representations Reviewer if a Review Asset is paid in full by the related Lessee or purchased from the Issuer in accordance with the terms of the Basic Documents.  On receipt of such notice, the Asset Representations Reviewer will immediately terminate all Tests of the related Review Asset, and the Review of such Review Asset will be considered complete (a “Test Complete”). 5 In this case, the related Review Report will indicate a Test Complete for such Review Asset and the related reason. If a Review is in process and the Notes will be paid in full on the next Payment Date, the Servicer will notify the Asset Representations Reviewer and the Indenture Trustee no less than ten (10) days before that Payment Date.  On receipt of such notice, the Asset Representations Reviewer will terminate the Review immediately and will not be obligated to deliver a Review Report. Section 3.08       Review Report. Within five (5) days following the applicable Review period described in Section 3.06, the Asset Representations Reviewer will provide the Issuer, the Servicer, the Administrator and the Indenture Trustee with a Review Report indicating for each Review Asset whether there was a Test Pass, Test Fail or Test Complete for each related Test.  For each Test Fail or Test Complete, the Review Report will indicate the related reason, including (for example) whether the Review Asset was a Test Fail as a result of missing or incomplete Review Materials.  The Review Report will contain a summary of the Review results to be included in the Issuer’s Form 10-D report in accordance with Section 1.21 of the Issuer Administration Agreement.  The Asset Representations Reviewer will ensure that the Review Report does not contain any Personally Identifiable Information.  On reasonable request of the Servicer, the Asset Representations Reviewer will provide additional details on the Test results. Section 3.09       Review and Procedure Limitations. The Asset Representations Reviewer will have no obligation (i) to determine whether a Delinquency Trigger has occurred, (ii) to determine whether the required percentage of Noteholders has voted to direct a Review, (iii) to determine which 2016-2 Leases are subject to a Review, (iv) to obtain or confirm the validity of the Review Materials, (v) to obtain missing or insufficient Review Materials (except to the extent set forth in Section 3.04), (vi) to take any action or cause any other party to take any action under any of the Basic Documents to enforce any remedies for breaches of any Eligible Representations or (vii) to determine whether any Test Fail constitutes a breach of any Basic Document. The Asset Representations Reviewer will only be required to perform the Tests provided in Exhibit A in consideration of the Review Materials made accessible to it in accordance with the terms of this Agreement, and will have no obligation to perform additional testing procedures on any Review Assets other than as specified in this Agreement.  The Asset Representations Reviewer will have no obligation to provide reporting or information in addition to that described in Section 3.08.  However, the Asset Representations Reviewer may review and report on additional information that it determines in good faith to be material to its performance under this Agreement. The Issuer expressly agrees that the Asset Representations Reviewer is not advising the Issuer or any Noteholder or any investor or future investor concerning the suitability of the Notes or any investment strategy.  The Issuer expressly acknowledges and agrees that the Asset 6 Representations Reviewer is not an expert in accounting, tax, regulatory, or legal matters, and that the Asset Representations Reviewer does not provide legal advice as to any matter. Section 3.10       Review Systems. The Asset Representations Reviewer will maintain and utilize an electronic case management system to manage the Tests and provide systematic control over each step in the Review process and ensure consistency and repeatability among the Tests. Section 3.11       Representatives. (a)            Servicer Representative.  The Servicer will provide reasonable access to one or more designated representatives to respond to reasonable requests and inquiries made by the Asset Representations Reviewer in its completion of a Review. (b)            Asset Representations Reviewer Representative. The Asset Representations Reviewer will provide reasonable access to one or more designated representatives to respond to reasonable requests and inquiries made by the Servicer, the Issuer or the Indenture Trustee during the Asset Representations Reviewer’s completion of a Review.  The Asset Representations Reviewer will not be obligated to respond to questions or requests for clarification from Noteholders or any other Person, and will direct any such Persons to submit written questions or requests to the Servicer. Section 3.12       Dispute Resolution. If a Review Asset that was the subject of Review becomes the subject of a dispute resolution proceeding under Section 4.2 of the Servicing Supplement, the Asset Representations Reviewer will participate in the dispute resolution proceeding on request of a party to the proceeding.  The reasonable out-of-pocket expenses of the Asset Representations Reviewer for its participation in any dispute resolution proceeding will be considered expenses of the requesting party for the dispute resolution and will be paid by a party to the dispute resolution as determined by the mediator or arbitrator for the dispute resolution according to Section 4.2 of the Servicing Supplement.  If not paid by a party to the dispute resolution, the reasonable expenses of the Asset Representations Reviewer will be reimbursed by the Issuer according to Section 4.03 of this Agreement. Section 3.13       Records Retention. The Asset Representations Reviewer will maintain copies of Review Materials, Review Reports and internal work papers and correspondence (collectively the “Client Records”) for a period of two (2) years after the delivery of the related Review Report.  At the expiration of the retention period, the Asset Representations Reviewer shall return all Client Records to the Servicer, in such format as mutually agreed by the Servicer and the Asset Representations Reviewer.  Upon the return of the Client Records, the Asset Representations Reviewer shall have no obligation to retain such Client Records or to respond to inquiries concerning the Review. 7 ARTICLE IV. PAYMENTS TO ASSET REPRESENTATIONS REVIEWER Section 4.01       Asset Representations Reviewer Fees. (a)            Annual Fee. As compensation for its activities hereunder, the Asset Representations Reviewer shall be entitled to receive an annual fee (the “Annual Fee”) with respect to each annual period prior to the termination of the Issuer, in an amount equal to $7,500, which shall be paid in accordance with Section 4.01(c). (b)            Review Fee. Following the completion of a Review and the delivery to the Indenture Trustee, the Issuer, the Servicer and the Administrator of the related Review Report, or the termination of a Review according to Section 3.07, and the delivery to the Servicer, the Issuer, the Administrator and the Indenture Trustee of a detailed invoice, the Asset Representations Reviewer will be entitled to a fee of $175 for each Review Asset for which a Review was started (the “Review Fee”).  However, no Review Fee will be charged for any Review Asset which was included in a prior Review or for which no Tests were completed prior to the Asset Representations Reviewer being notified of a termination of the Review according to Section 3.07 or due to missing or insufficient Review Materials in accordance with Section 3.04. (c)            Payment. All payments required to be made to the Asset Representations Reviewer shall be made to the following wire account or to such other account as may be specified by the Asset Representations Reviewer from time to time: Clayton Fixed Income Services LLC ABA#:  021000021 Account #:  114778965 JPMorgan Chase, 270 Park Avenue, New York, NY 10027 The initial Annual Fee will be paid by the Servicer on the Closing Date. Each other Annual Fee, each Review Fee and the amount of any properly invoiced expenses or claims to be reimbursed or paid by the Issuer pursuant to the terms of this Agreement, will become due and payable by the Issuer (i) in the case of such other Annual Fees, on the Payment Date occurring in November of each year, beginning in 2017, and continuing until this Agreement is terminated in accordance with the priority of payments set forth in Section 5.04 or 8.04 of the Indenture, as applicable, and (ii) in the case of the Review Fee and such other expenses or claims (including under Sections 4.02, 4.03, and 5.04), on the Payment Date in the calendar month subsequent to the calendar month in which the related detailed written invoice is received by the Issuer and the Servicer, to be paid in accordance with the priority of payments set forth in Section 5.04 or 8.04 of the Indenture, as applicable; provided that, in the event that any such properly invoiced fees, expenses or claims are not paid or reimbursed in full by the Issuer on the related Payment Date, 8 BMW Financial Services NA, LLC, in its capacity as Administrator, shall promptly pay the Asset Representations Reviewer for any such unpaid amounts in accordance with the terms of the Issuer Administration Agreement; provided further, that if, subsequent to any such payment by the Administrator to the Asset Representations Reviewer, the Asset Representations Reviewer receives payment or reimbursement in respect of the related fee, expense or claim, in part or in full, from the Issuer, then the Asset Representations Reviewer shall promptly refund the Administrator for the amount of such payment or reimbursement received from the Issuer on such subsequent date. If a Review is terminated in accordance with Section 3.07, the Asset Representations Reviewer must submit its invoice for the related Review Fee no later than ten (10) Business Days before the final Payment Date in order to be reimbursed on such final Payment Date. Section 4.02       Reimbursable Expenses. If the Servicer provides access to the Review Materials at one of its properties, the Issuer will reimburse the Asset Representations Reviewer for its reasonable travel expenses incurred in connection with the Review upon receipt of a detailed written invoice provided to the Issuer and the Servicer; provided that such expenses may not exceed $3,000 for any Review.  Such expenses shall be paid on the Payment Date in the calendar month subsequent to the calendar month in which such invoice in received. The Asset Representations Reviewer will also be reimbursed for any expenses related to a dispute resolution proceeding as set forth in Section 4.03. Section 4.03       Dispute Resolution Expenses. If the Asset Representations Reviewer participates in a dispute resolution proceeding under Section 3.12 of this Agreement and its reasonable out-of-pocket expenses for participating in the proceeding are not paid by a party to the dispute resolution within ninety (90) days after the end of the proceeding, the Issuer will reimburse the Asset Representations Reviewer for such expenses upon receipt of a detailed written invoice.  Such expenses shall be paid on the such invoice is received. ARTICLE V. OTHER MATTERS PERTAINING TO THE ASSET REPRESENTATIONS REVIEWER Section 5.01       Representations and Warranties of the Asset Representations Reviewer. The Asset Representations Reviewer hereby makes the following representations, warranties and covenants as of the Closing Date: (a)            Organization and Good Standing.  The Asset Representations Reviewer is a limited liability company duly formed and validly existing in good standing under the laws of the State of Delaware, with the power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and has the power, authority and legal right to perform its obligations under this Agreement. 9 (b)            Due Qualification.  The Asset Representations Reviewer is duly qualified to do business and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications. (c)            Due Authorization.  The execution, delivery and performance by the Asset Representations Reviewer of this Agreement have been duly authorized by the Asset Representations Reviewer by all necessary limited liability company action on the part of the Asset Representations Reviewer and this Agreement will remain, from the time of its execution, an official record of the Asset Representations Reviewer. (d)            Binding Obligation.  This Agreement constitutes a legal, valid and binding obligation of the Asset Representations Reviewer enforceable in accordance with its terms subject to bankruptcy, insolvency and other similar laws affecting creditors’ rights generally and subject to equitable principles. (e)            No Violation. The execution and delivery of this Agreement by the Asset Representations Reviewer, and the performance by the Asset Representations Reviewer of the obligations contemplated by this Agreement and the fulfillment by the Asset Representations Reviewer of the terms hereof applicable to the Asset Representations Reviewer, will not conflict with, violate, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, any Federal or State statute, rule or regulation that is applicable to the Asset Representations Reviewer, or any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Asset Representations Reviewer is a party or by which it is bound. (f)            No Proceedings.  There are no proceedings or investigations pending or, to the best knowledge of the Asset Representations Reviewer, threatened against the Asset Representations Reviewer before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality seeking to prevent the issuance of the Notes or the Trust Certificates or the consummation of any of the transactions contemplated by this Agreement, seeking any determination or ruling that, in the reasonable judgment of the Asset Representations Reviewer, would materially and adversely affect the performance by the Asset Representations Reviewer of its obligations under this Agreement, or seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement. (g)            Compliance with Applicable Law.  The Asset Representations Reviewer will act in accordance with all requirements applicable to an asset representations reviewer under applicable law (as amended from time to time) and other state or federal securities law applicable to asset representations reviewers in effect during the term of this Agreement. Section 5.02       Limitation of Liability. To the fullest extent permitted by applicable law, the Asset Representations Reviewer shall not be under any liability to the Issuer, the Servicer, or the Indenture Trustee, or any other Person for any action taken or not taken, in each case in good faith and in its capacity as Asset Representations Reviewer pursuant to this Agreement, or for errors in judgment, whether arising from express or implied duties under this Agreement; provided, however, that this provision 10 shall not protect the Asset Representations Reviewer against any liability which would otherwise by imposed by reason of willful misconduct, bad faith, or negligence in the performance of its duties or by reason of reckless disregard of its obligations and duties hereunder.  In no event will the Asset Representations Reviewer be liable for special, indirect or consequential loss or damage (including loss of profit) even if the Asset Representations Reviewer has been advised of the likelihood of the loss or damage and regardless of the form of action.  The Asset Representations Reviewer and any director, officer, employee, or agent may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder.  The Asset Representations Reviewer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties under this Agreement which in its reasonable opinion may involve it in any expense or liability in respect of which it shall not have received sufficient security or indemnity. Section 5.03       Inspections of Asset Representations Reviewer The Asset Representations Reviewer agrees that, with reasonable prior notice not more than once during any year, it will permit authorized representatives of the Issuer, the Servicer or the Administrator, during the Asset Representations Reviewer’s normal business hours, to examine and review the books of accounts, records, reports and other documents and materials of the Asset Representations Reviewer relating to (a) the performance of the Asset Representations Reviewer’s obligations under this Agreement, (b) payments of fees and expenses of the Asset Representations Reviewer for its performance under this Agreement and (c) any claim made by the Asset Representations Reviewer under this Agreement. In addition, the Asset Representations Reviewer will permit the Issuer’s, the Servicer’s or the Administrator’s representatives to make copies and extracts of any of those documents and to discuss them with the Asset Representations Reviewer’s officers and employees.  Each of the Issuer, the Servicer and the Administrator, will, and will cause its authorized representatives to, hold in confidence such information except if disclosure may be required by law or if the Issuer, the Servicer or the Administrator reasonably determines that it is required to make the disclosure under this Agreement or the other Basic Documents.  The Asset Representations Reviewer will maintain all relevant books, records, reports and other documents and materials for a period of at least two years after the termination of its obligations under this Agreement. Section 5.04       Indemnification of Asset Representations Reviewer. The Issuer will indemnify the Asset Representations Reviewer and its officers, directors, employees and agents (each, an “ARR Indemnified Person”), for all costs, expenses, losses, damages and liabilities resulting from the performance of its obligations under this Agreement (including the costs and expenses of defending itself against any loss, damage or liability), but excluding any cost, expense, loss, damage or liability resulting from (i) the Asset Representations Reviewer’s willful misconduct, bad faith or negligence or reckless disregard of its obligations and duties hereunder or (ii) the Asset Representations Reviewer’s breach of any of its representations, warranties, covenants or agreements in this Agreement. Section 5.05       Proceedings 11 Promptly on receipt by an ARR Indemnified Person of notice of a Proceeding against it, the ARR Indemnified Person, will, if a claim is to be made under Section 5.04, notify the Issuer and the Servicer of the Proceeding.  The Issuer or the Servicer may participate in and assume the defense and settlement of a Proceeding at its expense.  If the Issuer or the Servicer notifies the ARR Indemnified Person of its intention to assume the defense of the Proceeding with counsel reasonably satisfactory to the ARR Indemnified Person, and so long as the Issuer or the Servicer assumes the defense of the Proceeding in a manner reasonably satisfactory to the ARR Indemnified Person, the Issuer and the Servicer will not be liable for legal expenses of counsel to the ARR Indemnified Person unless there is a conflict between the interests of the Issuer or the Servicer, as applicable, and an ARR Indemnified Person.  If there is a conflict, the Issuer or the Servicer will pay for the reasonable fees and expenses of separate counsel to the ARR Indemnified Person.  No settlement of a Proceeding may be made without the approval of the Issuer and the Servicer and the ARR Indemnified Person, which approval will not be unreasonably withheld. Section 5.06       Delegation of Obligations The Asset Representations Reviewer may not delegate or subcontract its obligations under this Agreement to any Person without the consent of the Issuer and the Servicer. Section 5.07       Indemnification by Asset Representations Reviewer. To the fullest extent permitted by law, the Asset Representations Reviewer shall indemnify and hold harmless the Issuer, the Depositor, the Servicer, the Owner Trustee and the Indenture Trustee, and their respective officers, directors, trustees, successors, assigns, legal representatives, agents, and servants (each an “Indemnified Person”), from and against any and all liabilities, obligations, losses, damages, penalties, taxes, claims, actions, investigations, proceedings, costs, expenses or disbursements (including reasonable legal fees and expenses, including those incurred by an Indemnified Person in connection with the enforcement of any indemnification or other obligation of the Asset Representations Reviewer) of any kind and nature whatsoever which may be imposed on, incurred by, or asserted at any time against an Indemnified Person (whether or not also indemnified against by any other person) which arose out of the negligence, willful misconduct or bad faith of the Asset Representations Reviewer in the performance of its obligations and duties under this Agreement; provided, however, that the Asset Representations Reviewer shall not be liable for or required to indemnify an Indemnified Person from and against expenses arising or resulting from (i) the Indemnified Person’s own willful misconduct, bad faith or negligence, or (ii) the inaccuracy of any representation or warranty made by the Indemnified Person. In case any such action, investigation or proceeding will be brought involving an Indemnified Person, the Asset Representations Reviewer will assume the defense thereof, including the employment of counsel and the payment of all expenses.  The Issuer, the Depositor, the Servicer, the Owner Trustee and the Indenture Trustee each will have the right to employ separate counsel in any such action, investigation or proceeding and to participate in the defense thereof and the reasonable attorney’s fees will be paid by the Asset Representations Reviewer.  In the event of any claim, action, or proceeding for which indemnity will be sought pursuant to this Section 5.07, the Issuer’s, the Depositor’s, the Servicer’s, the Owner Trustee’s 12 and the Indenture Trustee’s choice of legal counsel shall be subject to the approval of the Asset Representations Reviewer, which approval shall not be unreasonably withheld. The indemnification obligations set forth in Section 5.04 and this Section 5.07 will survive the termination of this Agreement and the resignation or removal of the Asset Representations Reviewer.  The obligations pursuant to this Section 5.07 shall not constitute a claim against the Issuer or the Trust Estate (as defined in the Indenture) and the Asset Representations Reviewer shall not be liable for any amount in excess of the fees received by it in accordance with the terms of this Agreement.  To the extent amounts due to the Indenture Trustee and the Owner Trustee under this Section 5.07 are in excess of the limitation set forth in the immediately preceding sentence, such amounts will be paid by the Issuer in accordance with the priority of payments set forth in Section 5.04 or 8.04 of the Indenture, as applicable.   ARTICLE VI. REMOVAL, RESIGNATION Section 6.01       Removal of Asset Representations Reviewer. If any one of the following events (“Disqualification Events”) shall occur and be continuing: (a)            the Asset Representations Reviewer no longer meets the eligibility requirements in Section 2.02; (b)            any failure by the Asset Representations Reviewer duly to observe or perform in any material respect any other covenant or agreement of the Asset Representations Reviewer set forth in this Agreement; or (c)            an Insolvency Event occurs with respect to the Asset Representations Reviewer; then, the Issuer may, but shall not be required to, remove the Asset Representations Reviewer and promptly appoint a successor Asset Representations Reviewer by written instrument, in duplicate, one copy of which instrument shall be delivered to the Asset Representations Reviewer so removed and one copy to the successor Asset Representations Reviewer. Any removal of the Asset Representations Reviewer shall not take effect until a successor Asset Representations Reviewer is assigned in accordance with Section 6.02. Section 6.02       Appointment of Successor. If a successor Asset Representations Reviewer has not been appointed by the Issuer within thirty (30) days after the giving of written notice of resignation by the Asset Representations Reviewer pursuant to Section 6.04 or the delivery of the written instrument with respect to the removal of the Asset Representations Reviewer pursuant to Section 6.01, the Asset Representations Reviewer or the Servicer may apply to any court of competent jurisdiction to appoint a successor Asset Representations Reviewer meeting the requirements of Section 2.02 to act until such time, if any, as a successor Asset Representations Reviewer has been appointed as above provided. 13 Section 6.03       Merger or Consolidation of, or Assumption of the Obligations of, Asset the Representations Reviewer. Any Person (a) into which the Asset Representations Reviewer is merged or consolidated, (b) resulting from any merger or consolidation to which the Asset Representations Reviewer is a party or (c) succeeding to the business of the Asset Representations Reviewer, if that Person meets the eligibility requirements in Section 2.02, will be the successor to the Asset Representations Reviewer under this Agreement.  Such Person shall execute and deliver to the Issuer, the Servicer and the Indenture Trustee an agreement to assume the Asset Representations Reviewer’s obligations under this Agreement (unless the assumption happens by operation of law). Section 6.04       Asset Representations Reviewer Not to Resign. The Asset Representations Reviewer shall not resign from the obligations and duties hereby imposed on it except upon determination that (i) the performance of its duties hereunder is no longer permissible under applicable law and (ii) there is no reasonable action which the Asset Representations Reviewer could take to make the performance of its duties hereunder permissible under applicable law. Any such determination permitting the resignation of the Asset Representations Reviewer shall be evidenced as to clause (i) above by an Opinion of Counsel and as to clause (ii) by an officer’s certificate of the Asset Representations Reviewer, each to such effect delivered to the Issuer, the Servicer, and the Indenture Trustee.  The Asset Representations Reviewer shall promptly notify the Issuer, the Servicer and the Indenture Trustee upon having made any such determination permitting its resignation hereunder, and shall provide, with such notice, appropriate evidence thereof (as described in the immediately preceding sentence). Upon receipt of such notice, the Issuer shall promptly appoint a successor Asset Representations Reviewer by written instrument, in duplicate, one copy of which instrument shall be delivered to the Asset Representations Reviewer so removed and one copy to the successor Asset Representations Reviewer.  No such resignation shall become effective until a successor Asset Representations Reviewer shall have assumed the responsibilities and obligations of the Asset Representations Reviewer in accordance with Section 6.02 hereof. Section 6.05       Cooperation of Asset Representations Reviewer. In the event of any resignation or removal of the Asset Representations Reviewer pursuant to the terms of this Agreement, the Asset Representations Reviewer shall cooperate with the Issuer and the Servicer and take all reasonable steps requested to assist the Issuer and the Servicer in making an orderly transfer of the duties of the Asset Representations Reviewer.  To the extent expenses incurred by the Asset Representations Reviewer in connection with the replacement of the Asset Representations Reviewer are not paid by the Asset Representations Reviewer that is being replaced, the Issuer will pay such expenses in accordance with the priority of payments set forth in Section 5.04 ARTICLE VII. TREATMENT OF CONFIDENTIAL INFORMATION 14 Section 7.01       Confidential Information. (a)            Treatment.  The Asset Representations Reviewer agrees to hold and treat Confidential Information given to it under this Agreement in confidence and under the terms and conditions of this Article VII, and will implement and maintain safeguards to further assure the confidentiality of the Confidential Information.  The Confidential Information will not, without the prior consent of the Issuer and the Servicer, be disclosed or used by the Asset Representations Reviewer, or its officers, directors, employees, agents, representatives or affiliates, including legal counsel (collectively, the “Information Recipients”) other than for the purposes of performing Reviews of Review Assets or performing its obligations under this Agreement.  The Asset Representations Reviewer agrees that it will not, and will cause its Affiliates to not (i) purchase or sell securities issued by the Issuer or its Affiliates or special purpose entities on the basis of Confidential Information or (ii) use the Confidential Information for the preparation of research reports, newsletters or other publications or similar communications. (b)            Definition.  “Confidential Information” means oral, written and electronic materials (irrespective of its source or form of communication) furnished before, on or after the date of this Agreement to the Asset Representations Reviewer for the purposes contemplated by this Agreement, including: (i)            lists of Review Assets and any related Review Materials; (ii)            origination and servicing guidelines, policies and procedures, and form contracts; and (iii)            notes, analyses, compilations, studies or other documents or records prepared by the Servicer, which contain information supplied by or on behalf of the Servicer or its representatives. However, Confidential Information will not include information that (A) is or becomes generally available to the public other than as a result of disclosure by the Information Recipients, (B) was available to, or becomes available to, the Information Recipients on a non-confidential basis from a Person or entity other than the Issuer or the Servicer before its disclosure to the Information Recipients who, to the knowledge of the Information Recipient is not bound by a confidentiality agreement with the Issuer or the Servicer and is not prohibited from transmitting the information to the Information Recipients, (C) is independently developed by the Information Recipients without the use of the Confidential Information, as shown by the Information Recipients’ files and records or other evidence in the Information Recipients’ possession or (D) the Issuer or the Servicer provides permission to the applicable Information Recipients to release. (c)            Protection.  The Asset Representations Reviewer will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of Confidential Information, including those measures that it takes to protect its own confidential information and not less than a reasonable standard of care.  The Asset Representations Reviewer acknowledges that Personally Identifiable Information is also subject to the additional requirements in Section 7.02. 15 (d)            Disclosure.  If the Asset Representations Reviewer is required by applicable law, regulation, rule or order issued by an administrative, governmental, regulatory or judicial authority to disclose part of the Confidential Information, it may disclose the Confidential Information.  However, before a required disclosure, the Asset Representations Reviewer, if permitted by law, regulation, rule or order, will use its reasonable efforts to provide the Issuer and the Servicer with notice of the requirement and will cooperate, at the Servicer’s expense, in the Issuer’s and the Servicer’s pursuit of a proper protective order or other relief for the disclosure of the Confidential Information.  If the Issuer or the Servicer is unable to obtain a protective order or other proper remedy by the date that the information is required to be disclosed, the Asset Representations Reviewer will disclose only that part of the Confidential Information that it is advised by its legal counsel it is legally required to disclose. (e)            Responsibility for Information Recipients.  The Asset Representations Reviewer will be responsible for a breach of this Article VII by its Information Recipients. (f)            Violation.  The Asset Representations Reviewer agrees that a violation of this Agreement may cause irreparable injury to the Issuer and the Servicer and the Issuer and the Servicer may seek injunctive relief in addition to legal remedies.  If an action is initiated by the Issuer or the Servicer to enforce this Article VII, the prevailing party will be entitled to reimbursement of costs and expenses, including reasonable attorney’s fees, incurred by it for the enforcement. Section 7.02       Safeguarding Personally Identifiable Information. (a)            Definition.  “Personally Identifiable Information” means information in any format about an identifiable individual, including, name, address, phone number, e-mail address, account number(s), identification number(s), any other actual or assigned attribute associated with or identifiable to an individual and any information that when used separately or in combination with other information could identify an individual, as further described in § 501(b) of the Gramm-Leach-Bliley Act and the Interagency Guidelines Establishing Standards for Safeguarding Customer Information (12 C.F.R. Section 208, Appendix D-2) (collectively, the “Privacy Laws”), that is provided or made available to the Asset Representations Reviewer pursuant to this Agreement.  “Issuer PII” means Personally Identifiable Information furnished by the Issuer, the Servicer or their Affiliates to the Asset Representations Reviewer and Personally Identifiable Information developed or otherwise collected or acquired by the Asset Representations Reviewer in performing its obligations under this Agreement. (b)            Use of Issuer PII.  The Asset Representations Reviewer will not disclose Issuer PII to its personnel or allow its personnel access to Issuer PII except (A) for the Asset Representations Reviewer personnel who require Issuer PII to perform a Review, (B) with the prior consent of the Issuer and the Servicer or (C) as required by applicable law.  When permitted, the disclosure of or access to Issuer PII will be limited to the specific information necessary for the individual to complete the assigned task.  The Asset Representations Reviewer will inform personnel with access to Issuer PII of the confidentiality requirements in this Agreement and train its personnel with access to Issuer PII on the proper use and protection of Issuer PII.  The Asset Representations Reviewer will not sell, disclose, provide or exchange Issuer PII with or to any third party without the prior consent of the Issuer and the Servicer. 16 (c)            Safeguards.  The Issuer does not grant the Asset Representations Reviewer any rights to Issuer PII except as provided in this Agreement.  The Asset Representations Reviewer will use Issuer PII only to perform its obligations under this Agreement or as specifically directed in writing by the Issuer and will only reproduce Issuer PII to the extent necessary for these purposes.  The Asset Representations Reviewer must comply with all laws applicable to Personally Identifiable Information, Issuer PII and the Asset Representations Reviewer’s business, including any legally required codes of conduct, including those relating to privacy, security and data protection.  The Asset Representations Reviewer will protect and secure the Issuer PII.  The Asset Representations Reviewer will implement privacy or data protection policies and procedures that comply with applicable law and this Agreement.  The Asset Representations Reviewer will implement and maintain reasonable and appropriate practices, procedures and systems, including administrative, technical and physical safeguards designed to (i) protect the security, confidentiality and integrity of Issuer PII, (ii) ensure against anticipated threats or hazards to the security or integrity of Issuer PII, (iii) protect against unauthorized access to or use of Issuer PII and (iv) otherwise comply with its obligations under this Agreement.  These safeguards include a written data security plan, employee training, information access controls, restricted disclosures, systems protections (e.g., intrusion protection, data storage protection and data transmission protection) and physical security measures. (d)            Information. The Asset Representations Reviewer agrees to provide the Issuer with information regarding its privacy and information security systems, policies and procedures as the Issuer may reasonably request relating to compliance with this Agreement and applicable Privacy Laws. The Asset Representations Reviewer shall provide training in the Privacy Laws and the Asset Representations Reviewer’s information security policies to all personnel whose duties pursuant to this Agreement could bring them in contact with Personally Identifiable Information. (e)            Breach.  The Asset Representations Reviewer will notify the Issuer and the Servicer promptly in the event of an actual or reasonably suspected security breach, unauthorized access, misappropriation or other compromise of the security, confidentiality or integrity of Issuer PII and, where applicable, immediately take action to prevent any further breach.  In the event of any actual or apparent theft, unauthorized use or disclosure of any Personally Identifiable Information, the Asset Representations Reviewer will commence all reasonable efforts to investigate and correct the causes and remediate the results thereof, and as soon as practicable following discovery of any such event, provide the Issuer notice thereof, and such further information and assistance as may be reasonably requested. (f)            Return or Disposal of Issuer PII.  Except where return or disposal is prohibited by applicable law, promptly on the earlier of the completion of a Review or the request of the Issuer, all Issuer PII in any medium in the Asset Representations Reviewer’s possession or under its control will be (i) destroyed in a manner that prevents its recovery or restoration or (ii) if so directed by the Issuer, returned to the Issuer without the Asset Representations Reviewer retaining any actual or recoverable copies, in both cases, without charge to the Issuer.  Where the Asset Representations Reviewer retains Issuer PII, the Asset Representations Reviewer will limit the Asset Representations Reviewer’s further use or disclosure of Issuer PII to that 17 (g)            Compliance; Modification.  The Asset Representations Reviewer will cooperate with and provide information to the Issuer regarding the Asset Representations Reviewer’s compliance with this Section 7.02.  The Asset Representations Reviewer, the Issuer and the Servicer agree to modify this Section 7.02 as necessary for either party to comply with applicable law. (h)            Audit of Asset Representations Reviewer.  The Asset Representations Reviewer will permit the Issuer, the Servicer and their respective authorized representatives to audit the Asset Representations Reviewer’s compliance with this Section 7.02 during the Asset Representations Reviewer’s normal business hours on reasonable advance notice to the Asset Representations Reviewer, and not more than once during any year unless circumstances necessitate additional audits.  The Issuer and the Servicer agree to make reasonable efforts to schedule any audit described in this Section 7.02 with the inspections described in Section 5.03.  The Asset Representations Reviewer will also permit the Issuer during normal business hours on reasonable advance written notice to audit any service providers used by the Asset Representations Reviewer to fulfill the Asset Representations Reviewer’s (i)            Affiliates and Third Parties.  If the Asset Representations Reviewer processes the Issuer PII of the Issuer’s Affiliates or a third party when performing a Review, and if such Affiliate or third party is identified to the Asset Representations Reviewer, such Affiliate or third party is an intended third-party beneficiary of this Section 7.02, and this Agreement is intended to benefit the Affiliate or third party.  The Affiliate or third party may enforce the Issuer PII related terms of this Section 7.02 against the Asset Representations Reviewer as if each were a signatory to this Agreement. ARTICLE VIII. OTHER MATTERS PERTAINING TO THE ISSUER Section 8.01       Termination of the Issuer. This Agreement will terminate, except for obligations under Article VII and Sections 5.04 and 5.07, on the earlier of (i) the payment in full of all outstanding Notes and the satisfaction and discharge of the Indenture and (ii) the date the Issuer is terminated in accordance with the terms of the Trust Agreement. ARTICLE IX. MISCELLANEOUS PROVISIONS Section 9.01       Amendment. (a)            This Agreement may be amended by the Asset Representations Reviewer, the Issuer and the Servicer, without the consent of any of the Noteholders, (i) to comply with any change in any applicable federal or state law, to cure any ambiguity, to correct or supplement any provisions in this Agreement or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions in this Agreement; provided, however, that such 18 action shall not, as evidenced by an Opinion of Counsel delivered to the Issuer and the Servicer, adversely affect in any material respect the interests of any Noteholder whose consent has not been obtained, or (ii) to correct any manifest error in the terms of this Agreement as compared to the terms expressly set forth in the Prospectus. (b)            This Agreement may also be amended from time to time by the Asset Representations Reviewer, the Issuer and the Servicer, with the consent of the Noteholders of Notes evidencing at least a majority of the Outstanding Amount of the Notes, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders. (c)            It shall not be necessary for any consent of Noteholders pursuant to this Section 9.01 to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof. (d)            Prior to the execution of any amendment to this Agreement, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement.  The Owner Trustee may, but shall not be obligated to, execute and deliver such amendment which affects its rights, powers, duties or immunities hereunder. (e)            Notwithstanding anything to the contrary in this Section 9.01, any amendment to this Agreement that affects the rights or obligations of either the Indenture Trustee or the Owner Trustee will require the consent of the Indenture Trustee or the Owner Trustee, as applicable. Section 9.02       Notices. All notices hereunder shall be given by United States certified or registered mail, by facsimile or by other telecommunication device capable of creating written record of such notice and its receipt.  Notices hereunder shall be effective when received and shall be addressed to the respective parties hereto at the addresses set forth below, or at such other address as shall be designated by any party hereto in a written notice to each other party pursuant to this section. If to the Asset Representations Reviewer, to: 1700 Lincoln Street Denver, CO 80203 Attention: SVP, Surveillance 100 Beard Sawmill Road Shelton, CT 06484 If to the Issuer, to: 19 c/o Wilmington Trust, National Association Rodney Square North 1100 North Market Street Wilmington, Delaware 19890-1600 Attention: Corporate Trust Administration with a copy to the Administrator, at: BMW Financial Services NA, LLC 300 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677 Attention: General Counsel If to the Servicer, to: Section 9.03       Severability Clause. This Agreement constitutes the entire agreement among the Asset Representations Reviewer, the Issuer and the Servicer. All prior representations, statements, negotiations and undertakings with regard to the subject matter hereof are superseded hereby. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remaining terms and provisions of this Agreement, or the application of such terms or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest Section 9.04       Counterparts. This Agreement may be executed simultaneously in any number of counterparts.  Each counterpart shall be deemed to be an original, and all such counterparts Section 9.05       Governing Law. THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. 20 Section 9.06       Relationship of the Parties. The Asset Representations Reviewer is an independent contractor and, except for the services which it agrees to perform hereunder, the Asset Representations Reviewer does not hold itself out as an agent of any other party hereto.  Nothing herein contained shall create or imply an agency relationship among the Asset Representations Reviewer and any other party hereto, nor shall this Agreement be deemed to constitute a joint venture or partnership between the parties. Section 9.07       Captions. The captions used herein are for the convenience of reference only and not part of this Agreement, and shall in no way be deemed to define, limit, describe or modify the meanings of any provision of this Agreement. Section 9.08       Waivers. No term or provision of this Agreement may be waived or modified unless such waiver or modification is in writing and signed by the party against whom such waiver or modification is sought to be enforced. Section 9.09       Assignment. This Agreement may not be assigned by the Asset Representations Reviewer except as permitted under Section 6.03 hereof. Section 9.10       Benefit of the Agreement; Third-Party Beneficiaries. This Agreement is for the benefit of and will be binding on the parties to this Agreement and their permitted successors and assigns.  The Owner Trustee and the Indenture Trustee, for the benefit of the Noteholders, will be third-party beneficiaries of this Agreement entitled to enforce this Agreement against the Asset Representations Reviewer and the Servicer.  No other Person will have any right or obligation under this Agreement, except as provided in Section 7.02(i). Section 9.11       Exhibits. The exhibits to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement. Section 9.12       No Petition. Each of the parties hereto covenants and agrees that prior to the date that is one year and one day after the date upon which all obligations and payments under the Securitized Financing have been paid in full, they will not institute against, or join any Person in instituting against any Noteholder, any Note Owner, the UTI Beneficiary (and the general partner of the UTI Beneficiary that is a partnership, or the managing member of the UTI Beneficiary that is a limited liability company), the Vehicle Trustee, the Vehicle Trust, any Special Purpose Affiliate (and the general partner of any Special Purpose Affiliate that is a partnership, or the managing 21 member of any Special Purpose Affiliate that is a limited liability company) that holds a beneficial interest in the Vehicle Trust, the Transferor, the Transferee, the Indenture Trustee or any Affiliate or beneficiary of the same, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceedings under any United States federal or state bankruptcy or similar law; provided, however, that nothing herein shall be deemed to prohibit the Asset Representations Reviewer from filing a claim in, or otherwise participating in, any such action or proceeding that is not prohibited hereunder. Section 9.13       Limitation of Liability of Owner Trustee. The parties hereto are put on notice and hereby acknowledge and agree that (a) this Agreement is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as Owner Trustee of the undertakings and agreements by Wilmington Trust, National Association 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, National Association, individually or personally, to perform any covenant either expressed or implied contained herein of the Issuer, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) Wilmington Trust, National Association has made no investigation as to the accuracy or completeness of any representations and warranties made by the Issuer in this Agreement and (e) under no circumstances shall Wilmington Trust, National Association 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 Agreement or any other related documents. 22 IN WITNESS WHEREOF, the Issuer, the Servicer and the Asset Representations Reviewer have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the date first above written.   as Issuer   By:        Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee   By:                                                                       Name: Title:   as Servicer   By:                                                                       Name: Title:   as Asset Representations Reviewer   By:                                                                       Name: Title:   23 EXHIBIT A Representations and Warranties Made as of October 13, 2016 Tests 1.       The 2016-2 Vehicle was a new BMW passenger car, BMW light truck, BMW motorcycle, MINI passenger car or Rolls-Royce passenger car at the time of origination of the related 2016-2 Lease. 1.       Observe the related Lease Agreement and confirm that the 2016-2 Vehicle is described therein as being a new BMW passenger car, BMW light truck, BMW motorcycle, MINI passenger car or Rolls-Royce passenger car. 2.        The 2016-2 Vehicle has a model year of 2013 or later. 2.       Observe the related Lease Agreement and confirm that the 2016-2 Vehicle is described therein as having a model year of 2013 or later. 3.       The 2016-2 Lease provides for level payments that fully amortize the Adjusted Capitalized Cost of the 2016-2 Lease at the related Lease Rate to the related Contract Residual Value over the lease term and, in the event of a lessee-initiated early termination, provides for payment of the related Early Termination Cost. 3.       Observe the related Lease Agreement and confirm that, as of October 13, 2016: (i) each Monthly Payment was described therein as being equal, except that the final payment may be different, (ii) such Monthly Payments fully amortize the Adjusted Capitalized Cost to the Contract Residual Value over the term of such 2016-2 Lease, and (iii) such Lease Agreement contained language indicating that the related Lessee will have to pay Early Termination Costs if such Lessee initiates early termination of such 2016-2 Lease. 4.       The 2016-2 Lease was originated on or after April 1, 2014. 4.       Observe the related Lease Agreement and confirm that the origination date of the 2016-2 Lease is described therein as being a date on or after April 1, 2014. 5.       The 2016-2 Lease has a Maturity Date on or after the March 2017 Payment Date and no later than the August 2019 Payment Date. 5.       Observe the related Lease Agreement and confirm that, as of October 13, 2016, the Maturity Date of the related 2016-2 Lease described therein was: (i) on or after the Payment Date in March 2017 and (ii) no later than the Payment Date in August 2019. 6.       The 2016-2 Lease is not more than 29 days past due as of the Cutoff Date. 6.       Observe the data tape provided by BMW FS for the purposes of such review (the “Data Tape”) and confirm that, as of October 13, 2016, the 2016-2 Lease is not described thereon as being more than 29 days past due as of the Cutoff Date. 7.       The 2016-2 Lease was originated by BMW FS in the United States, for a Lessee with a U.S. address, in the ordinary course of BMW FS’ business and in compliance with BMW FS’ customary credit policies and practices. 7.       Observe the related Lease Agreement and confirm that, as of October 13, 2016: (i) the Lessee’s address was within the United States of America (exclusive of any territories, army post offices, fleet post offices and diplomatic post offices) and (ii) such Lease Agreement was on a form included in the list of approved forms of lease agreements provided to Clayton Fixed Income Services LLC (“Clayton”) by BMW FS. 8.       The 2016-2 Lease is a U.S. dollar-denominated obligation. 8.       Observe the related Lease Agreement and confirm that the Monthly Payments required to be made by the related Lessee are not specifically described as being in a currency other than U.S. dollars.     1 Representations and Warranties Tests 9.       The 2016-2 Lease was created in compliance in all material respects with all applicable federal and state laws, including consumer credit, truth in lending, equal credit opportunity and applicable disclosure laws. 9.       Observe the related Lease Agreement and confirm that, as of October 13, 2016, such Lease Agreement was on a form included in the list of approved forms of lease agreements provided to Clayton by BMW FS. 10.    The 2016-2 Lease (a) is a legal, valid and binding payment obligation of the Lessee, enforceable against the Lessee in accordance with its terms, as amended, (b) has not been satisfied, subordinated, rescinded, canceled or terminated, and (c) no right of rescission, setoff, counterclaim or defense with respect to such 2016-2 Lease has been asserted or threatened in writing. 10.    Observe the related Lease Agreement and confirm that, as of October 13, of lease agreements provided to Clayton by BMW FS.  Observe the Data Tape and confirm that, as of October 13, 2016, the 2016-2 Lease has one of the status codes provided by BMW FS to Clayton for the purpose of such confirmation.  Observe the related 2016-2 Lease in the Data Tape and confirm it was an active account on the Closing Date. 11.    For each 2016-2 Lease that was executed electronically, an electronic executed copy of the documentation  associated with the 2016-2 Lease is located at one of BMW FS’ offices. 11.    Observe the electronic Lease Agreement in BMW FS’ customer service system and confirm that, if the related Lease Agreement was executed electronically, an electronic copy of the executed Lease Agreement appears therein. 12.    The 2016-2 Lease requires the related Lessee to obtain physical damage and liability insurance that names BMW FS or the lessor as loss payee covering the related 2016-2 Vehicle. 12.    Observe the related Lease Agreement and confirm that, as of October 13, 2016, the face of such Lease Agreement required that the related Lessee to obtain physical damage and liability insurance naming BMW FS or the lessor as loss payee. 13.    The 2016-2 Lease has been validly assigned to the Vehicle Trust by the related Center and is owned by the Vehicle Trust, free of all liens, encumbrances or rights of others other than liens relating to administration of title and tax issues. 13.    Observe (a) the copy of the related Lease Agreement in the Lease File and confirm on the face of the Lease Agreement that it is marked appropriately to indicate the assignment of the related 2016-2 Lease to the Vehicle Trust and (b) the related Lease Agreement and confirm there is no notation on the face of the related Lease Agreement of any lien, encumbrances or rights of others (other than liens relating to administration of title and tax issues). 14.    As of the Cutoff Date, the Lessee of the 2016-2 Lease has a garaging state address in a Trust State and such Lessee is not BMW FS, the Depositor or any of their respective affiliates. 14.    Observe the face of the related Lease Agreement and confirm that, as of the Cutoff Date, (i) the garaging state address of the related Lessee was in a State on the list of Trust States provided to Clayton by BMW FS, and (ii) the Lessee is not BMW FS, the Depositor or any other entity on the list of affiliates provided to Clayton by BMW FS.     2 Representations and Warranties Tests 15.    The Certificate of Title for the vehicle related to the 2016-2 Lease is registered in the name of the Vehicle Trust or the Vehicle Trustee (or a properly completed application for such certificate of title has been submitted to the appropriate titling authority). 15.    Observe the related Lease File and confirm that either (i) the copy of the Certificate of Title for the related 2016-2 Vehicle contained therein is registered to the Vehicle Trust or the Vehicle Trustee or (ii) such Lease File contains evidence that, as of October 13, 2016, a properly completed application for the Certificate of Title to be registered to the Vehicle Trust or the Vehicle Trustee has been submitted to a titling authority. 16.    The 2016-2 Lease is a closed-end lease that required all Monthly Payments to be made within 36 months of the date of origination of such lease. 16.    Observe the related Lease Agreement and confirm that, as of October 13, 2016, the lease term stated on the face of such Lease Agreement was no more than 36 months. 17.    The 2016-2 Lease is fully assignable and does not require the consent of the Lessee as a condition to any transfer, sale or assignment of the rights of the related originator. 17.    Observe the related Lease Agreement and confirm that the face of such Lease Agreement contains a statement thereon indicating that the 2016-2 Lease may be transferred, sold or assigned without the consent of the related Lessee. 18.    The 2016-2 Lease has not been deferred or otherwise modified except in accordance with BMW FS’ normal credit and collection policies and practices. 18.    Observe the related Lease File and confirm that, as of October 13, 2016, the 2016-2 Lease has not been deferred or otherwise modified except in 19.    The 2016-2 Lease is not an asset of an Other SUBI. 19.    Observe the Data Tape and confirm that the 2016-2 Lease is described therein as being an asset of the 2016-2 SUBI (through a unique “IT” code to be provided by BMW) which identifies the 2016-2 SUBI. 20.    The servicing systems of BMW FS do not indicate that the Lessee of the 2016-2 Lease is currently the subject of a bankruptcy proceeding. 20.    Observe the Data Tape and confirm that, as of October 13, 2016, the 2016-2 Lease is not described thereon as being the subject of a bankruptcy proceeding. 21.    The 2016-2 Lease constitutes tangible “chattel paper” or “electronic chattel paper” for purposes of the UCC and, if such 2016-2 Lease constitutes “electronic chattel paper,” the Vehicle Trust has “control” (as such term is used in Section 9-105 of the UCC) over the “authoritative copy” (as such term is used in Section 9-105 of the UCC) of such 2016-2 Lease. 21.    Observe the related Lease Agreement and confirm that (i) such Lease Agreement was on a form included in the list of approved forms of lease agreements provided to Clayton by BMW FS, and (ii) if such Lease Agreement was completed electronically, the face of such Lease Agreement indicates that it is the “Authoritative Copy”. 3

Exhibit 10.1   MAGNEGAS CORPORATION Placement Agency Agreement Common Stock, Preferred Stock, and Warrants March 24, 2014 Northland Securities, Inc. 45 South Seventh Street, Suite 2000 Minneapolis, Minnesota  55402 Ladies and Gentlemen:   MagneGas Corporation, a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated in this Placement Agency Agreement (this “Agreement”) and the Stock Purchase Agreement in the form of Exhibit A attached hereto (the “Stock Purchase Agreement”) entered into with the investors identified therein (each, an “Investor” and collectively, the “Investors”), to issue and sell up to an aggregate of $5,000,000 of (i) shares (the “Common Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), (ii) shares (the “Preferred Shares” and together with the Common Shares, the “Shares”) of the Company’s preferred stock, par value $0.001 per share (the “Preferred Stock”) and (iii) warrants (the “Warrants”), which are exercisable for shares of the Common Stock (the “Warrant Shares” and together with the Shares and the Warrants, the “Securities”).  The Company hereby confirms its agreement with Northland Securities, Inc. (the “Placement Agent”) as set forth below.  The Shares are more fully described in the Prospectus (as defined below).  This Agreement supplements that certain letter agreement between the Company and Northland Securities, Inc. dated April 26, 2013 (the “Letter Agreement”) by providing additional information with respect to the offering described herein.   The Company has prepared and filed, in accordance with the Securities Act of thereunder, with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (file number 333-188661), including a prospectus, relating to the Shares, which registration statement and prospectus incorporate or are deemed to incorporate by reference documents that the Company has filed, or will file, with the Commission in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder.  The registration statement as amended at the time it became or becomes effective for purposes of Section 11 of the Securities Act, including the documents filed as part thereof and information contained or incorporated by reference in the prospectus or otherwise deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act, is hereinafter referred to as the “Registration Statement.”  If the Company files an abbreviated registration statement to register additional shares of Common Stock or Preferred Stock pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement.  The Company has also filed with, or transmitted for filing to, or shall promptly after the date of this Agreement file with or transmit for filing to, the Commission a final prospectus supplement (in the form first used to confirm sales of the Shares, the “Prospectus Supplement”) pursuant to Rule 424 under the Securities Act.  The term “Base Prospectus” means the prospectus dated May 17, 2013, relating to the Shares, in the form in which it has most recently been filed with the Commission as part of the Registration Statement on or prior to the date of this Agreement.  The term “Prospectus” means the Base Prospectus as supplemented by the Prospectus Supplement.  The term “Preliminary Prospectus” means any preliminary form of Prospectus.   Placement Agency Agreement   Page 1     For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act; “Time of Sale Prospectus” means the Base Prospectus and the Preliminary Prospectus, together with the free writing prospectuses, if any, each identified in Schedule I hereto (each, a “Permitted Free Writing Prospectus”), and other information conveyed to Investors at or prior to the Time of Sale as set forth in Schedule I hereto; “Time of Sale” means the time the Shares are sold to the Investors on the date of the Stock Purchase Agreement for the Shares; and “road show” has the meaning set forth in Rule 433(h)(4) under the Securities Act.  As used herein, the terms “Registration Statement,” “Base Prospectus,” “Preliminary Prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, deemed to be incorporated by reference therein, including, unless the context otherwise requires, the documents, if any, filed as exhibits to such incorporated documents.  The terms “supplement,” “amendment” and “amend” as used herein with respect to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, any Preliminary Prospectus, the Prospectus or any free writing prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Exchange Act that are deemed to be incorporated by reference therein.   1.           Agreement to Act as Placement Agent; Delivery and Payment.  On the basis of the representations, warranties and agreements of the Company herein contained, and subject to the terms and conditions set forth in this Agreement:   (a)           The Company hereby engages the Placement Agent, as the exclusive agent of the Company, to, on a reasonable best efforts basis, solicit offers to purchase Securities from the Company on the terms and subject to the conditions set forth in the Stock Purchase Agreement and Prospectus (as defined below).  The Placement Agent shall use reasonable best efforts to assist the Company in obtaining performance by each Investor whose offer to purchase the Securities was solicited by such Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, have any liability to the Company in the event any such purchase is not consummated for any reason.  In connection with its reasonable best efforts to solicit offers to purchase the Securities, the Placement Agent shall only communicate information regarding the Company to potential purchasers of the Securities that is consistent with the information contained in the Prospectus.  Under no circumstances will the Placement Agent or any of its affiliates be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing.  The Placement Agent shall act solely as the Company’s agent and not as principal.  The Placement Agent has no authority to bind the Company with respect to any prospective offer to purchase Securities, and the Company shall have the sole right to accept offers to purchase Securities and may reject any such offer, in whole or in part.   (b)           As compensation for services rendered by the Placement Agent hereunder, on the Closing Date (as defined below), the Company shall pay or cause to be paid to the Placement Agent by wire transfer of immediately available funds to an account or accounts designated by the Placement Agent, an aggregate amount equal to 7.0% of the gross proceeds received by the Company from the sale of the Securities to Investors (the “Agency Fees”).  Such amount may be deducted from the payment made by the Investor(s) to the Company and paid directly to the Placement Agent on the Closing Date.  In addition, as set forth in the second paragraph of Section C(1) of the Letter Agreement, for the consideration of $100 at the Closing Date, the Company will sell to the Placement Agent, a warrant to purchase shares of the Common Stock equal to 5.0% of the Shares (on an as converted to common stock basis) (the “Agent Warrants”).  The Agent Warrants will be in the form attached hereto as Exhibit C.   (c)           The Securities are being sold to the Investors at a price of $1.45 per share (the “Purchase Price”) as set forth on the cover page of the Prospectus (as defined below).  The purchases of Securities by the Investors shall be evidenced by the execution of the Stock Purchase Agreement by each of the parties thereto in the form attached hereto as Exhibit A.   Placement Agency Agreement   Page 2     (d)           Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase shares of the Common Stock (other than pursuant to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof or are granted in the ordinary course to directors, officers or employees of the Company under the Company’s equity incentive plans) or Preferred Stock otherwise than through the Placement Agent in accordance herewith or any other agreements with the Placement Agent.   (e)           No Securities which the Company has agreed to sell pursuant to this Agreement and the Stock Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor purchasing such Securities against payment therefor by such Investor.  If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or liability directly or indirectly arising from or as a result of the default by the Company in accordance with the procedures set forth in Section 6(c) hereof.   (f)           Payment of the purchase price for, and delivery of the Securities shall be made at a closing (the “Closing”) at the location, time and date as the Placement Agent and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act (such date of payment and delivery being herein referred to as the “Closing Date”).  Unless otherwise specified in the Stock Purchase Agreement, the Securities will be settled through the facilities of The Depository Trust Company’s DWAC system.  Subject to the terms hereof, payment of the purchase price for the Securities shall be made to the Company in the manner set forth below by Federal Funds wire transfer, against delivery of the Securities to such persons and shall be registered in the name or names and shall be in such denominations as the Placement Agent may request at least one business day before the Closing Date.  Payment of the purchase price for the Securities to be purchased by Investors shall be made by such Investors directly to the Company.  Subject to the terms and conditions hereof, on the Closing Date, the Company shall pay to Placement Agent the amount of expenses for which the Placement Agent is entitled to reimbursement pursuant hereto.  At least one day prior to the Closing Date, the Placement Agent shall submit to the Company its bona fide estimate of the amount of expenses for which it is entitled to reimbursement pursuant hereto.  As soon as reasonably practicable after the Closing Date, the Placement Agent shall submit to the Company its expense reimbursement invoice and the Company or the Placement Agent, as applicable, shall make any necessary reconciling payment(s) within 10 days of receipt of such invoices.   2.           Representations and Warranties of the Company. The Company represents and warrants to the Placement Agent as of the date hereof and as of the Closing Date, and agrees with the Placement Agent, as follows:   (a)           The Registration Statement has become effective under the Securities Act; and no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.  The shares of Common Stock and Preferred Stock outstanding prior to the issuance of the Securities to be sold by the Company have been duly authorized, are validly issued, fully paid and non assessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights.  All prior offers and sales of securities by the Company were made in compliance in all material respects with the Securities Act and all other applicable laws and regulations.   Placement Agency Agreement   Page 3     (b)           The Base Prospectus and any Preliminary Prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the rules and regulations thereunder (including, without limitation, Rule 430B(a) or 430A(b)).   (c)           (i)  Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder; (ii) each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to statements therein not misleading; (iii) the Registration Statement, as of the date hereof, does not contain and, as amended or supplemented, if applicable, therein not misleading; (iv) the Registration Statement complies and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act; the conditions to the use of Form S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including without limitation Rule 415(a)(5)); (v) at no time during the period that begins on May 17, 2013 and ends immediately prior to the execution of this Agreement did the Base Prospectus or any Preliminary Prospectus contain any untrue statement of a material fact or omit to state a circumstances under which they were made, not misleading; (vi) the Time of Sale Prospectus does not, and at the Time of Sale and at the Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vii) each Permitted Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus; (viii) each road show, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (ix) the Prospectus, as of the date it is filed with the Commission pursuant to Rule 424 and at the Closing Date, will comply in all material respects with the Securities Act (including without limitation Section 10(a) of the Securities Act) and will not contain any untrue statement of a material fact or omit to that the representations and warranties set forth in this Section 2(c) do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus, any Preliminary Prospectus, any Permitted Free Writing Prospectus, any road show or the Prospectus or any amendments or supplements thereto based upon information relating to the Placement Agent furnished to the Company in writing by the Placement Agent expressly for use therein, it being agreed that the only information furnished by the Placement Agent to the Company expressly for use therein is the “Placement Agent’s Information” described in Section 7 below.   (d)           Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Permitted Free Writing Prospectuses; the Company has not, directly or indirectly, prepared, used or referred to any free writing prospectuses, without the prior written consent of the Placement Agent, other than the Permitted Free Writing Prospectuses and road shows furnished or presented to the Placement Agent before first use.  Each Permitted Free Writing Prospectus has been prepared, used or referred to in compliance with Rules 164 and 433 under the Securities Act; assuming that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Securities Act, filed with the Commission), the sending or giving, by the Placement Agent, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor the Placement Agent is disqualified, by reason of subsection (f) or (g) of Rule 164 under the Securities Act, from using, in connection with the offer and sale of the Shares, free writing prospectuses pursuant to Rules 164 and 433 under the Securities Act; each Permitted Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act; no Permitted Free Writing Prospectus conflicts with the information contained in the Registration Statement, any Preliminary Prospectus, Time of Sale Prospectus or Prospectus; and, to the Company’s knowledge, no free writing prospectus prepared by or on behalf of or used by any Placement Agent contains any “issuer information” within the meaning of Rule 433(h)(2) under the Securities Act.   Placement Agency Agreement   Page 4     (e)           The Company was, at the time the Registration Statement was initially filed and when it became effective, and is, eligible to use Form S-3 to register the offering of the Shares contemplated hereby.  The Company was not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration Statement.  The conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied.   (f)           Shares of Common Stock are (and the Common Shares, Warrant Shares, and Agent Warrant Shares (as defined below) will be) listed for quotation and admitted for trading on the NASDAQ Capital Market (“NASDAQ”), and the Company has not received any notice from NASDAQ regarding the delisting of such shares from NASDAQ (except for such notices as have been fully resolved).  Notice of issuance of the Shares has been duly submitted to NASDAQ. To the Company’s knowledge, there are no affiliations or associations between (i) any member of the Financial Industry Regulatory Authority (“FINRA”) and (ii) the Company or any of the Company’s officers, directors or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date the Registration Statement was initially filed with the Commission, except as disclosed in the Registration Statement (excluding the exhibits thereto), the   (g)           All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement has been taken.  The Company has the requisite corporate power to enter into this Agreement and carry out and perform its obligations under the terms of this Agreement.  At the closing of the offering contemplated hereby (the “Closing”), the Company will have the requisite corporate power to issue and sell the Securities, the Agent Warrants, and the Common Stock issuable upon the exercise of the Agent Warrants (the “Agent Warrant Shares”).  This Agreement has been duly authorized, executed and delivered by the Company and, upon due execution and delivery by the Agent, this Agreement will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by equitable principles or to the extent the indemnification and contribution provisions may be limited by applicable federal or state securities laws.   Placement Agency Agreement   Page 5     (h)           The execution, delivery and performance of this Agreement, the issuance and sale of the Securities to be sold by the Company in the offering contemplated hereby, the issuance of the Agent Warrants, the issuance of the Agent Warrant Shares, and the consummation of the actions contemplated by this Agreement (which for all purposes herein shall include the offering contemplated hereby, the sale of the Agent Warrants and the issuance of the Agent Warrant Shares) will not (a) result in any violation of, be in conflict with, or constitute a default under, with or without the passage of time or the giving of notice:  (i) any provision of the Company’s or its subsidiaries certificate of incorporation or bylaws (or similar governing documents) as in effect on the date hereof or the date of the Closing (the “Closing Date”); (ii) any provision of any judgment, arbitration ruling, decree or order to which either of the Company or its subsidiaries are a party or by which any of them is bound; (iii) any bond, debenture, note or other evidence of indebtedness, or any lease, contract, mortgage, indenture, deed of trust, loan agreement, joint venture or other agreement, instrument or commitment to which the Company or its subsidiaries are a party or by which any of them or their respective properties are bound; or (iv) any statute, rule, law or governmental regulation applicable to the Company or its subsidiaries; or (b) result in the creation or imposition of any lien, encumbrance, claim, security interest or restriction whatsoever upon any of the properties or assets of the Company or its subsidiaries or any acceleration of indebtedness pursuant to any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or any indenture, mortgage, deed of trust or any other agreement or instrument to which the Company or its subsidiaries are a party or by which either of them is bound or to which any of the property or assets of the Company or its subsidiaries are subject.  No consent, approval, authorization or other order of, or registration, qualification or filing with, any regulatory body, administrative agency, or other governmental body is required for the execution and delivery of this Agreement by the Company and the valid issuance or sale of the Securities by the Company pursuant to this Agreement, other than such as have been made or obtained and that remain in full force and effect.   (i)           The form of certificate of incorporation and bylaws of the Company attached as an exhibit to the Company’s filings with the Securities and Exchange Commission (the “SEC”), are true, correct and complete copies of the certificate of incorporation and bylaws of the Company, as in effect on the date hereof.   (j)           The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted.  Each of the Company and its subsidiaries has full power and authority to own, operate and occupy its properties and to conduct its business as presently conducted, as presently proposed to be conducted, and is duly qualified to transact business and is in good standing in each jurisdiction in which the failure so to qualify would have a material adverse effect on the Company’s and its subsidiaries’ business, financial condition, properties, operations, prospects or assets or its ability to perform its obligations under this Agreement (a “Material Adverse Effect”).   Placement Agency Agreement   Page 6     (k)           The consolidated financial statements contained in each report, registration statement and definitive proxy statement filed by the Company with the SEC (all documents filed with the SEC, the “Company SEC Documents”):  (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) the information contained therein as of the respective dates thereof was accurate and complete and did not required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; (iii) were prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods covered, except as may be indicated in the notes to such financial statements and (in the case of unaudited statements) as permitted by Form 10-Q of the SEC, and except that unaudited financial statements may not contain footnotes and are subject to year-end audit adjustments; and (iv) fairly present the consolidated financial position of the Company and its subsidiaries as of the respective dates thereof and the consolidated results of operations, cash flows and the changes in stockholders’ equity of the Company and its subsidiaries for the periods covered thereby.  Except as set forth in the financial statements included in the Company SEC Documents, neither the Company nor its subsidiaries has any liabilities, contingent or otherwise, other than liabilities incurred in the ordinary course of business subsequent to September 30, 2013, and liabilities of the type not required under generally accepted accounting principles to be reflected in such financial statements.  Such liabilities incurred subsequent to September 30, 2013, are not, in the aggregate, material to the financial condition or operating results of the Company and its subsidiaries, taken as a whole.  The financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, together with the related notes and schedules, have been prepared in compliance with the requirements of the Securities Act and Exchange Act; all pro forma financial statements or data included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, if any, comply with the requirements of the Securities Act and the Exchange Act, and the assumptions used in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate to give effect to the transactions or circumstances described therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements and data; the other financial and statistical data contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus or the Prospectus that are not included or incorporated by reference as required; the Company does not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described in the Time of Sale Prospectus and the Prospectus or in documents incorporated therein by reference, other than trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice; and all disclosures contained or incorporated by reference in the Time of Sale Prospectus and the Prospectus regarding “non-GAAP Commission) comply with Regulation G under the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.  The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.   (l)           All statistical or market-related data included or incorporated by reference in the Time of Sale Prospectus, the Prospectus and the Permitted Free Writing Prospectuses are based on or derived from sources that the Company reasonably believes to be reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources to the extent required.  Each “forward-looking statement” (within the meaning of Section 27A of the Securities Act or Section 21E of the Exchange Act) contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus, the Prospectus and the Permitted Free Writing Prospectuses has been made or reaffirmed with a reasonable basis and in good faith.   Placement Agency Agreement   Page 7     (m)           The authorized capital stock of the Company consists of (i) 90,000,000 shares of Common Stock, of which (A) 28,399,859 shares were issued and outstanding as of the date of this Agreement, and (B) 6,909,121 were reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants or other convertible securities as of the date of this Agreement; and (ii) 10,000,000 shares of preferred stock, 1,000,000 of which were issued and outstanding as of the date of this Agreement, and none are outstanding or reserved for issuance upon the exercise or conversion, as the case may be, of outstanding options, warrants or other convertible securities.  All issued and outstanding shares of Common Stock and Preferred Stock have been duly authorized and validly issued, are fully paid and nonassessable, were not issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities, and, except as disclosed in the Company SEC Documents, have been issued and sold in compliance with the registration requirements of federal and state securities laws or the applicable statutes of limitation have expired.  Except as set forth in the Stock Purchase Agreement or in the Company SEC Documents, there are no (i) outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind to which the Company or its subsidiaries is a party and relating to the issuance or sale of any capital stock or convertible or exchangeable security of the Company or its subsidiaries; or (ii) obligations of the Company to purchase redeem or otherwise acquire any of its outstanding capital stock or any interest therein or to pay any dividend or make any other distribution in respect thereof.  There are no anti-dilution or price adjustment provisions, co-sale rights, registration rights, rights of first refusal or other similar rights contained in the terms governing any outstanding security of the Company that will be triggered by the issuance of the Securities.   (n)           Except as set forth in the Company SEC Documents, the Company does not presently own or control, directly or indirectly, and has no stock or other interest as owner or principal in, any other corporation or partnership, joint venture, association or other business venture or entity (each a “subsidiary”).  The Company’s subsidiaries are duly incorporated or organized, validly existing and in good standing under the laws of their jurisdiction of incorporation or organization and have all requisite power and authority to carry on their business as now conducted.  Such subsidiaries are duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on their respective business or properties.  All of the outstanding capital stock or other voting securities of such subsidiaries are owned by the Company, directly or indirectly, free and clear of any liens, claims, or encumbrances.   (o)           The Securities are duly authorized and, when issued, sold, delivered and paid for in accordance with the terms of the Stock Purchase Agreement, the Securities or the Agent Warrants, as the case may be, the shares of common stock issuable pursuant to the Agent Warrants will be duly and validly authorized and issued, fully paid and nonassessable, free from all taxes, liens, claims, encumbrances and charges with respect to the issue thereof; provided, however, that the Securities may be subject to restrictions on transfer under state and/or federal securities laws or as otherwise set forth herein.  The issuance, sale and delivery of the Securities in accordance with the terms hereof or of the Stock Purchase Agreement or the Agent Warrants (as the case may be) will not be subject to preemptive rights of stockholders of the Company.  The Agent Warrant Shares have been duly reserved for issuance upon exercise of Agent Warrants.   (p)           The issuance of the Agent Warrants and the Agent Warrant Shares upon exercise of the Agent Warrants (assuming no change in applicable law prior to the date the Agent Warrant Shares are issued), are and will be exempt from the registration and prospectus delivery requirements of the Securities Act of 1933 (the “Securities Act”) and have been or will be registered or qualified (or are or will be exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws.  Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require registration under the Securities Act of the issuance of the Agent Warrants.  Upon the exercise of the Agent Warrants pursuant to their terms, the Agent Warrant Shares will be quoted on the Nasdaq Stock Market (the “Principal Market”).  Other than the Company SEC Documents, the Company has not distributed and will not distribute prior to the Closing any offering material in connection with the offering and sale of the Securities, unless such offering materials are provided to the Agent prior to or simultaneously with such delivery to the offerees of the Securities.   Placement Agency Agreement   Page 8     (q)          Except as set forth in the Company SEC Documents, there is no action, suit, proceeding nor investigation pending or, to the Company’s knowledge, currently threatened against the Company or its subsidiaries that (a) if adversely determined would reasonably be expected to have a Material Adverse Effect on the Company or its subsidiaries or (b) would be required to be disclosed in the Company’s Annual Report on Form 10-K under the requirements of Item 103 of Regulation S-K.  The foregoing includes, without limitation, any action, suit, proceeding or investigation, pending or threatened, that questions the validity of this Agreement or the right of the Company to enter into such Agreement and perform its obligations hereunder.  Neither the Company nor its subsidiaries are subject to any injunction, judgment, decree or order of any court, regulatory body, arbitral panel, administrative agency or other government body.   (r)           No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state, local or provincial governmental authority on the part of the Company is required in connection with the consummation of the transactions contemplated by this Agreements.   (s)          Except for any fees payable to the Agent, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based on arrangements made by the Company.   (t)           Neither the Company nor its subsidiaries are in violation of its certificate of incorporation or bylaws (or similar governing documents).  Neither the Company nor its subsidiaries have been advised or have reason to believe, that it is not conducting its business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, including, without limitation, all applicable local, state and federal environmental laws and regulations; except where failure to be so in compliance would not have a Material Adverse Effect.  Each of the Company and its subsidiaries has all necessary franchises, licenses, certificates and other authorizations from any foreign, federal, state or local government or governmental agency, department or body that are currently necessary for the operation of the business of the Company and its subsidiaries as currently conducted, except where the failure to currently possess such franchises, licenses, certificates and other authorizations would not reasonably be expected   (u)           Except as disclosed in the Company SEC Documents, since September 30, 2013, there has not been any change that has had a Material Adverse Effect.   Since September 30, 2013, the Company has not declared or paid any dividend or distribution on its capital stock.   (v)           Except for matters which are not reasonably likely to have a Material Adverse Effect and those contracts that are substantially or fully performed or expired by their terms, the contracts listed as exhibits to or described in the Company SEC Documents that are material to the Company or its subsidiaries and all amendments thereto, are in full force and effect on the date hereof, and neither the Company nor, to the Company’s knowledge, any other party to such contracts is in breach of or default under any of such contracts.  Neither the Company nor its subsidiaries has any contracts or agreements that would constitute a material contract as such term is defined in Item 601(b)(10) of Regulation S-K, except for such contracts or agreements that are filed as exhibits to or described in the Company SEC Documents.   Placement Agency Agreement   Page 9     (w)           Intellectual Property.   (i)           The Company has ownership or license or legal right to use all patents, copyrights, trade secrets, know-how, trademarks, trade names, customer lists, designs, manufacturing or other processes, computer software, systems, data compilation, research results or other proprietary rights used in the business of the Company or its subsidiaries (collectively “Intellectual Property”).  All of such patents, registered trademarks and registered copyrights have been duly registered in, filed in or issued by the United States Patent and Trademark Office, the United States Register of Copyrights or the corresponding offices of other jurisdictions and have been maintained and renewed in accordance with all applicable provisions of law and administrative regulations in the United States and all such jurisdictions.   (ii)          The Company believes it has taken all reasonable steps required in accordance with sound business practice and business judgment to establish and preserve its and its subsidiaries’ ownership of all material Intellectual Property with respect to their products and technology.  To the knowledge of the Company, there is no infringement of the Intellectual Property by any third party.   (iii)         To the knowledge of the Company, the present business, activities and products of the Company and its subsidiaries do not infringe any intellectual property of any other person.  No proceeding charging the Company or its subsidiaries with infringement of any adversely held Intellectual Property has been filed and the Company is unaware of any facts which are reasonably likely to form a basis for any such proceeding.   (iv)         No proceedings have been instituted or pending or, to the knowledge of the Company, threatened, which challenge the rights of the Company or its subsidiaries to the use of the Intellectual Property.  The Intellectual Property owned by the Company and its subsidiaries, and to the knowledge of the Company, the Intellectual Property licensed to the Company and its subsidiaries, has not been adjudged invalid or unenforceable, in whole or in part.  There is no pending or, to the knowledge of the Company, threatened proceeding by others challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any facts which are reasonably likely to form a basis for any such claim.  Each of the Company and its subsidiaries has the right to use, free and clear of material claims or rights of other persons, all of its customer lists, designs, computer software, systems, data compilations, and other information that are required for its products or its business as presently conducted.  Neither the Company nor its subsidiaries is making unauthorized use of any confidential information or trade secrets of any person.   (v)          The activities of any of the employees on behalf of the Company or of its subsidiaries do not violate any agreements or arrangements between such employees and third parties are related to confidential information or trade secrets of third parties or that restrict any such employee’s engagement in business activity of any nature.  Each former and current employee or consultant of the Company or its subsidiaries is a party to a written contract with the Company or its subsidiaries that assigns to the Company or its subsidiaries all rights to all inventions, improvements, discoveries and information relating to the Company or its subsidiaries, except for any failure to so do as would not   (vi)         All licenses or other agreements under which (i) the Company or its subsidiaries employs rights in Intellectual Property, or (ii) the Company or its subsidiaries has granted rights to others in Intellectual Property owned or licensed by the Company or its subsidiaries are in full force and effect, and there is no default (and there exists no condition which, with the passage of time or otherwise, would constitute a default by the Company or such subsidiary) by the Company or its subsidiaries with respect thereto.   Placement Agency Agreement   Page 10     (w)          The Company has taken no action designed to, or likely to have the effect of, terminating the quotation of the Common Stock (including the Common Shares, the Warrant Shares and the Agent Warrant Shares) on the Principal Market.  The Company is and on the Closing Date will be in compliance with all of the then-applicable requirements for continued quotation of the Common Stock on the Principal Market.   (x)           DKM Certified Public Accountants, Inc., who expressed its opinion with respect to the consolidated financial statements contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2012, have advised the Company that they are, and to the knowledge of the Company they are, independent accountants as required by the Securities Act and the rules and regulations promulgated thereunder.   (y)          The Company and its subsidiaries have filed all necessary federal, state, local and foreign income and franchise tax returns and have paid or accrued all taxes shown as due thereon, and the Company and its subsidiaries have no knowledge of a tax deficiency which has been or might be asserted or threatened against it by any taxing jurisdiction, other than any deficiency which the Company or its subsidiaries are contesting in good faith and with respect to which adequate reserves for payment have been established.   (z)           The Company and its subsidiaries maintain and will continue to maintain insurance of the types and in the amounts that the Company reasonably believes are adequate for its and its subsidiaries’ business, including, but not limited to, insurance covering all real and personal property owned or leased by the Company or its subsidiaries against theft, damage, destruction, acts of vandalism and all other risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect.   (aa)         On the Closing Date, all stock transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Securities and the Agent Warrants will be, or will have been, fully paid or provided for by the Company and the Company will have complied with all laws imposing such taxes.   (bb)         The Company (including its subsidiaries) is not an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for an investment company, within the meaning of the Investment Company Act of 1940 and will not be deemed an “investment company” as a result of the transactions contemplated by the Stock Purchase Agreement.   (cc)         To the knowledge of the Company, no transaction has occurred between or among the Company or any of its affiliates (including, without limitation, its subsidiaries), officers or directors or any affiliate or affiliates of any such affiliate officer or director that with the passage of time will be required to be disclosed pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) (assuming the Company’s Common Stock and Preferred Stock was registered under the Exchange Act) other than those transactions that have already been so disclosed.   (dd)        The books, records and accounts of the Company and its subsidiaries accurately and fairly reflect, in reasonable detail, the transactions in, and dispositions of, the assets of, and the operations of, the Company and its subsidiaries.   (ee)         The Company and its subsidiaries have established and maintain disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act), which (i) are designed to ensure that material information relating to the Company or its subsidiaries is made known to the Company’s principal executive officer and its principal financial officer by others within those entities particularly during the periods in which the periodic reports required under the Exchange Act are being prepared; and (ii) provide for the periodic evaluation of the effectiveness of such disclosure controls and procedures as of the end of the period covered by the Company’s most recent annual or quarterly report filed with the SEC.   Placement Agency Agreement   Page 11     Except as described in the Company SEC Documents, the Company and its subsidiaries maintain a system of internal accounting controls sufficient to and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any difference.  The Company and its subsidiaries maintain disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that it files with or submits to the SEC is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the SEC, including, without limitation, controls and procedures designed in to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow timely decisions regarding required disclosure.  Except as described in the Company SEC Documents, the Company is not aware of (i) any significant deficiency in the design or operation of internal controls which could adversely affect the Company’s or its subsidiaries’ ability to record, process, summarize and report financial data or any material weaknesses in internal controls; or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s or its subsidiaries’ internal controls.   Since the date of the most recent evaluation of such disclosure controls and procedures, there have been no changes that have materially affected, or are reasonably likely to materially affect, the Company’s or its subsidiaries’ internal control over financial reporting, including any corrective actions with regard to significant deficiencies and material weaknesses.   Except as described in the Company SEC Documents, there are no material off-balance sheet arrangements (as defined in Item 303 of Regulation S-K), or any other relationships with unconsolidated entities (in which the Company or its control persons have an equity interest) that may have a material current or future effect on the Company’s or its subsidiaries’ financial condition, revenues or expenses, changes in financial condition, results of operations, liquidity, capital expenditures or capital resources.   To the knowledge of the Company, except as described in the Company SEC Documents, the board of directors has not been informed, nor is any director of the Company aware, of (1) any significant deficiencies in the design or operation of the internal controls of the Company or its subsidiaries which process, summarize and report financial data or any material weakness in the Company’s or its subsidiaries’ internal controls; or (2) any fraud, whether or not material, that involves management or other employees of the Company or its subsidiaries who have a significant role in the Company’s or its subsidiaries’ internal controls.   Placement Agency Agreement   Page 12     (ff)           Each of the Company, its subsidiaries, its affiliates and any of their respective officers, directors, supervisors, managers, agents, or employees, has not violated, its participation in the offering will not violate, and the Company has instituted and maintains policies and procedures designed to ensure continued compliance with, each of the following laws:  (a) anti-bribery laws, including but not limited to, any applicable law, rule, or regulation of any locality, including but not limited to any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other law, rule or regulation of similar purposes and scope, (b) anti-money laundering laws, including but not limited to, applicable federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money laundering, including, without limitation, Title 18 US. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, all as amended, and any Executive order, directive, or regulation pursuant to the authority of any of the  foregoing, or any orders or licenses issued thereunder or (c) laws and regulations imposing U.S. economic sanctions measures, including, but not limited to, the International Emergency Economic Powers Act, the Trading with the Enemy Act, the United Nations Participation Act and the Syria Accountability and Lebanese Sovereignty Act, all as amended, and any Executive Order, directive, or regulation pursuant to the authority of any of the foregoing, including the regulations of the United States Treasury Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or any orders or licenses issued thereunder.  Neither the Company nor any director, officer, agent, employee or other person acting on behalf of the Company has, in the course of its actions for, or on behalf of, the Company (i) other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; or (iii) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.   (gg)         The Company is in compliance in all material respects with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof.   (hh)         Neither the Company nor its subsidiaries is a party to any collective bargaining agreement or employs any member of a union.  The Company believes that its relations with its employees are good.  No executive officer of the Company (as defined in Rule 501(f) of Regulation D under the Securities Act) has notified the Company that such officer intends to leave the Company or otherwise terminate such officer’s employment with the Company.  No executive officer of the Company, to the knowledge of the Company, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each such executive officer does not subject the Company to any liability with respect to any of the foregoing matters.  The Company and its subsidiaries are in compliance with all federal, state, local and foreign laws and regulations respecting labor, employment and employment practices and benefits, terms and conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.   (ii)           Each of the Company and its subsidiaries (i) is in compliance with any and all Environmental Laws (as hereinafter defined), (ii) has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (iii) is in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.  The term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution or protection of human health or the chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes   Placement Agency Agreement   Page 13     (jj)           None of the Company, its subsidiaries or any executive officer of the Company (as defined in Rule 501(f) of Regulation D under the Securities Act) has taken and will not take any action designed to or that might reasonably be expected to cause or result in an unlawful manipulation of the price of the Common Stock or Preferred Stock to facilitate the sale or resale of the Securities.  The Company confirms that, to its knowledge, with the exception of the proposed sale of Securities contemplated in the Stock Purchase Agreement (as to which the Company makes no representation), neither it nor any other person acting on its behalf has provided any of the Potential Investors or their agent or counsel with any information that constitutes or might constitute material, non-public information.  The Company understands and confirms that the Potential Investors shall be relying on the foregoing representations in effecting transactions in securities of the Company.  All disclosures provided to the Potential Investors regarding the Company, its business and the transactions contemplated by the Stock Purchase Agreement, including the exhibits to the Stock Purchase Agreement and the Company SEC Documents, furnished by the Company are true and correct and do not contain any untrue statement of a material fact misleading.  No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) made by the Company or any of its officers or directors contained in any Company SEC Document or made available to the public generally since January 1, 2012, has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.  Statistical, industry-related and market-related data included in the Company SEC Documents are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate in all material respects.   (kk)         The Company and its board of directors have taken all necessary business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation or the laws of the jurisdiction of its formation which is or could become applicable to any Potential Investor as a result of the transactions contemplated by the Stock Purchase Agreement, including, without limitation, the Company’s issuance of the Securities and any Potential Investor’s ownership of the Securities.  The Company has not adopted a stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of Common Stock or Preferred Stock or a change in control of the Company.   (ll)           There are no contracts, agreements or understandings between the file a registration statement under the Securities Act with respect to any with the Shares registered pursuant to the Registration Statement.   (mm)       Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) there has not occurred any material adverse change in or affecting the business, assets, general affairs, management, financial position, prospects, stockholders’ equity or results of operations of the Company (a “material adverse change”), or any development involving a prospective material adverse change, in the assets, business, condition (financial or otherwise), management, operations or earnings of the Company; (ii) the Company has not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction, other than trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice; (iii) the Company has not purchased any of its outstanding capital stock (except in connection with the payment of the exercise price of, or withholding taxes for, awards under the Company’s equity incentive plans), nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and customary dividends; and (iv) there has not been any material change in the capital stock, short-term debt or long-term debt of the Company, except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.   Placement Agency Agreement   Page 14     (nn)        The Company has good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by it that is material to the business of the Company, in each case free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement, the Time of Sale Prospectus and the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company; and any real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company, in each case except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus.   (oo)        The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its businesses, and the Company has not received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect.   (pp)        Neither the Company nor any of its directors, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in facilitate the sale or resale of the Securities.   2A.           The Company covenants and agrees as follows:   (a)           On the Closing Date, the Company will permit the Placement Agent to rely on any representations and warranties made by the Company to the Investors and will cause its counsel to permit the Placement Agent to rely upon any opinion furnished to the Investors.   (b)          The Company will comply with all of its obligations and covenants set forth in its agreements with the Investors.  The Company will promptly deliver to the Placement Agent and its counsel copies of any and all filings with the SEC and each amendment or supplement thereto, as well as all prospectuses and free writing prospectuses, prior to the closing of the offering and six months thereafter (if they are not filed on EDGAR).  The Placement Agent is authorized on behalf of the Company to use and distribute copies of any documents provided to the Placement Agent or Investors in connection with the offering, including Company SEC Documents in connection with the sale of the Securities as, and to the extent, permitted by federal and applicable state securities laws.   (c)           Neither the Company nor any of its affiliates has distributed, and none of them will distribute, any prospectus or other offering material in connection with the sale of the Securities other than any materials permitted by the Securities Act to be distributed by the Company.   Placement Agency Agreement   Page 15     (d)           The Company will apply the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus.   (e)           The Company will make available to the Placement Agent on a confidential basis all information concerning the business, assets, operations and financial condition of the Company, which the Placement Agent reasonably requests in connection with the performance of its obligations hereunder and the due diligence investigation deemed appropriate by the Placement Agent.  The Company shall make members of management and other employees available to the Placement Agent for purposes of satisfying such parties’ due diligence requirements, and shall commit such time and other resources as are necessary or appropriate to secure reasonable and timely success of a transaction.  The Company shall inform the Placement Agent of any material events or developments concerning prospective material events that may come to the attention of the Company at any point prior to the Closing Date.  The Placement Agent will be relying, without independent verification, on the accuracy and completeness of all financial and other information that is and will be furnished to it by the Company.   (f)           On the Closing Date, the Company shall deliver to the Placement Agent a certificate duly executed by an officer of the Company, stating on behalf of the Company that the representations and warranties contained in this Agreement are true and correct in all material respects as of the Closing Date as if they had been made on and as of said date and that the Company has performed and complied with all obligations and conditions herein required to be performed or complied with by it on or prior to the Closing and that the Company SEC Documents, as of the Closing Date, contain all material statements that are required to be made therein, do not include any untrue statement of a material necessary to make the statements therein not misleading.  On the Closing Date, the Company will also deliver to the Placement Agent any additional documents or instruments reasonably requested by the Placement Agent.   (g)           If in connection with the offering, the Placement Agent determines that they or the Company would be required to make a filing with the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Company will do the following:   (i)           The Company will cooperate with the Placement Agent with respect to all FINRA filings that the Company or the Placement Agent may be required to make and provide all information and documentation necessary to make the filings in a timely manner.   (ii)          The Company will pay all expenses related to all FINRA filings that the Company or Placement Agent may be required to make, including, but not limited to, all printing costs related to all documents required or that the Placement Agent may reasonably deem necessary, to comply with FINRA rules; any FINRA filing fees; postage and express charges; and all other expenses incurred in making the FINRA filings.   (iii)         The Company agrees and understands that this Agreement and the Letter Agreement in no way constitute a guarantee that the offering will be successful.  Management acknowledges that the Company is ultimately responsible for the successful completion of a transaction.   3.           The Company hereby agrees to register or permit the continuance of sales and/or dealings in the shares underlying the Agent Warrants on the same terms as those set forth in the that certain Registration Rights Agreement to be entered into with the purchasers of the Company’s securities in a private placement to be conducted concurrently with the offering contemplated hereby.   Placement Agency Agreement   Page 16     4.           Covenants.  The Company covenants and agrees with the Placement Agent as follows:   (a)           To furnish to the Placement Agent, without charge, upon request, two signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Placement Agent a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Placement Agent in Minneapolis, Minnesota, without charge, prior to 10:00 a.m. Central Time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 3(f) or 3(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Placement Agent may request.   (b)           Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Placement Agent a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Placement Agent objects, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.   (c)           To furnish to the Placement Agent a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Placement Agent objects.   (d)           Not to take any action that would result in the Placement Agent or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Placement Agent that the Placement Agent otherwise would not have been required to file thereunder.   (e)           To advise the Placement Agent promptly of any request by the Commission for amendments or supplements to the Registration Statement, the Base any Prospectus Supplement or any Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus; and if the Commission should enter such a stop order, to use its best efforts to obtain the lifting or removal of such order as soon as possible.   (f)           If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Placement Agent, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Placement Agent and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.   Placement Agency Agreement   Page 17     (g)           If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Placement Agent the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with the sales contemplated by this Agreement and the Stock Purchase Agreement, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Placement Agent, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Placement Agent, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.   (h)           If, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Securities Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible; and the Company will advise the Placement Agent promptly and, if requested by the Placement Agent, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the Securities Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).   (i)            If, at any time during the period when a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares, the Registration Statement shall cease to comply with the requirements of the Securities Act with respect to eligibility for the use of the form on which the Registration Statement was filed with the Commission, to (i) promptly notify the Placement Agent, (ii) promptly file with the Commission a new registration statement under the Securities Act, relating to the Shares, or a post-effective amendment to the Registration Statement, which new registration statement or post-effective amendment shall comply with the requirements of the Securities Act and shall be in a form satisfactory to the Placement Agent, (iii) use its best efforts to cause such new registration statement or post-effective amendment to become effective under the Securities Act as soon as practicable, (iv) promptly notify the Placement Agent of such effectiveness and (v) take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the Prospectus; all references herein to the Registration Statement shall be deemed to include each such new registration statement or post-effective amendment, if any.   (j)           If the third anniversary of the initial effective date of the Registration Statement occurs before all the Shares have been sold as contemplated in this Agreement and the Stock Purchase Agreement, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Shares to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.   (k)          To file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.   Placement Agency Agreement   Page 18     (l)           Promptly to furnish such information or to take such action as the Placement Agent may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Placement Agent shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction (excluding service of process with respect to the offer and sale of the Shares); and to promptly advise the Placement Agent of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.   (m)         To make generally available to the Company’s security holders and to the Placement Agent as soon as practicable an earning statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.   (n)         To use its best efforts to cause the Common Shares (and upon exercise of the Warrants and Agent Warrants, the Warrant Shares and Agent Warrant Shares) to be listed on NASDAQ (to the extent such Shares are not so listed) and to maintain the listing of the Common Stock, including such Shares, on NASDAQ.   (o)          During the period beginning on the date of this Agreement and continuing to and including 45 days after the date of the Prospectus, and without the prior written consent of the Placement Agent, not to (i) issue, purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or Preferred Stock or any securities convertible into or exercisable or exchangeable for Common Stock or Preferred Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock or Preferred Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock, Preferred Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock, Preferred Stock or any securities convertible into or exercisable or exchangeable for Common Stock or Preferred Stock, or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii).  The restrictions contained in the preceding sentence shall not apply to (i) the Securities to be sold hereunder, (ii) the grant of awards pursuant to the Company’s equity incentive plans under the terms of such plans in effect on the date hereof, provided that any such awards are granted at fair market value and in amounts and with exercise terms consistent with the Company’s past practice, or the sale purchase plans (or the filing of a registration statement on Form S-8 to register shares of Common Stock issuable under such plans), (iii) the issuance by the Company of shares of Common Stock or Preferred Stock upon the exercise of, or the vesting or conversion of, a security outstanding on the date of this Agreement which is disclosed in the Registration Statement or of which the Placement Agent has been advised in writing, (iv) the issuance by the Company of any such securities required pursuant to agreements providing for anti-dilution or other stock purchase or share issuance rights existing on the date of this Agreement, or (v) the issuance by the Company of any such securities as in-kind consideration as required pursuant to any agreement relating to any technology license, strategic alliance or joint venture.  Notwithstanding the foregoing, if (1) during the last 17 days of the 45-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 45-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 45-day period, the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Placement Agent waives, in writing, such extension; provided, that such extension of the 45-day period shall not apply if, (x) the Company’s securities are “actively-traded securities” as defined in Rule 101(c)(1) of Regulation M under the Exchange Act and (y) the Company meets the applicable requirements of Rule 139 under the Securities Act in the manner contemplated by NASD Rule 2711(f)(4) of the FINRA Manual.  The Company shall promptly notify the Placement Agent of any earnings release, news or event that may give rise to an extension of the initial 45-day restricted period.   Placement Agency Agreement   Page 19     (p)          To prepare, if the Placement Agent so requests, a final term sheet relating to the offering of the Shares, containing only information that describes the final terms of the Shares or the offering in a form consented to by the Placement Agent, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares.   (q)          To comply with Rule 433(d) under the Securities Act (without reliance on Rule 164(b) under the Securities Act) and with Rule 433(g) under the Securities Act.   (r)           Not to take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or Company to facilitate the sale or resale of the Shares.   (s)          Not, at any time at or after the execution of this Agreement, to offer or sell any Shares by means of any “prospectus” (within the meaning of the Securities Act) or use any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Time of Sale Prospectus or the Prospectus.   (t)          To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.   5.           Costs and Expenses.  The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or reimburse the Placement Agent all reasonable, actual and accountable expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including without limitation the reasonable legal fees and expenses of counsel to the Placement Agent and reasonable out-of-pocket accountable travel and related expenses, provided, however, such reimbursable costs and expenses shall not exceed $100,000.   6.           Conditions of Placement Agent’s Obligations.  The obligations of the Placement Agent hereunder is subject to the following conditions:   (a)          Filings with the Commission.  Each issuer free writing prospectus as defined in Rule 433(h) under the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 3 hereof.   Placement Agency Agreement   Page 20     (b)          No Stop Orders.  Prior to the Closing:  (i) no stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or any part thereof shall have been issued under the Securities Act and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission, (ii) no order suspending the qualification or registration of the Shares under the securities or blue sky laws of any jurisdiction shall be in effect and (iii) all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Placement Agent.  On or prior to the Closing Date, the Registration Statement or any amendment thereof or supplement thereto shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and neither the Time of Sale Prospectus, nor any Issuer Free Writing Prospectus nor the Prospectus nor any amendment thereof or supplement thereto shall contain any circumstances in which they were made, not misleading.   (c)          Action Preventing Issuance.  No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company.   (d)          Material Adverse Change.  Subsequent to the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Prospectus, (i) the Company has not sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Time of Sale Prospectus, or (ii) there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock or Preferred Stock due to the issuance of shares upon the exercise of outstanding options or warrants or the conversion of convertible indebtedness or the exercise or vesting of options or restricted stock units under the Company’s equity incentive plans), or material change in the short-term debt or long-term debt of the Company (other than upon conversion of convertible indebtedness) or any material adverse change, in each case otherwise than as set forth in the Time of Sale Prospectus, the effect of which, in any such case described in clause (i) or (ii) of this subsection (d), is, in the reasonable judgment of the Placement Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.   (e)          Representations and Warranties. Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects when made and on and as of the Closing Date, as if made on such date (except that those representations and warranties that address matters only as of a particular date shall remain true and correct as of such date), and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with.   (f)           Opinions of Counsel to the Company.  The Placement Agent shall have received, in each case in form and substance reasonably satisfactory to the Placement Agent and their counsel, (A) from Szaferman Lakind Blumstein & Blader, PC, counsel to the Company, such counsels’ written opinions, addressed to the Placement Agent and the Investors and dated the Closing Date and a written statement (“Negative Assurances”), addressed to the Placement Agent and dated the Closing Date, (B) from the Company’s special intellectual property counsel to the Company, such counsels’ written opinions, addressed to the Placement Agent and dated the Closing Date.   Placement Agency Agreement   Page 21     (g)         Opinion of Counsel to the Placement Agent.  The Placement Agent shall have received from Faegre Baker Daniels LLP, counsel for the Placement Agent, such opinion or opinions, dated the Closing Date, with respect to such matters as the Placement Agent may reasonably require, and the Company shall have furnished to such counsel such documents as it requests to enable it to pass upon such matters.   (h)          Accountant’s Comfort Letters.  On the date of pricing of the offering contemplated hereby, the Placement Agent shall have received a letter dated the date hereof (the “Comfort Letters”), addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and its counsel, from DKM Certified Public Accountants, Inc., (i) confirming that they are independent public accountants with respect to the Company within the meaning of the Securities Act and the Rules and Regulations and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 and Statement of Auditing Standard No. 100 (or successor bulletins), in connection with registered public offerings.   (i)           Bring-Down Letters.  On the Closing Date, the Placement Agent shall have received from DKM Certified Public Accountants, Inc. a letter (the “Bring-Down Letter”), dated the Closing Date, addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent and their counsel, (i) confirming that they are or were, as applicable, independent public accountants with respect to the Company within the meaning of the Securities Act and the Rules and Regulations, and (ii) confirming in all material respects the conclusions and findings set forth in the Comfort Letter.   (j)           Officer’s Certificate.  The Placement Agent shall have received on the Closing Date a certificate, addressed to the Placement Agent and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company to the effect that:   (i)           each of the representations, warranties and agreements of the Company contained in this Agreement were true and correct when originally made and are true and correct in all material respects as of the Time of Sale and the Closing Date as if made on each such date (except that those representations and warranties that address matters only as of a particular date remain true and correct as of each such date); and the Company has complied with all agreements and satisfied all the conditions on its part required under this Agreement to be performed or satisfied at or prior to the Closing Date; (ii)          there has not been, subsequent to the date of the most recent of Sale Prospectus, any material adverse change in the financial position or results of operations of the Company, or any change or development that, singularly or in the aggregate, would involve a material adverse change or a prospective material adverse change except as set forth in the Prospectus; (iii)         no stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Shares for offering or sale, nor suspending or preventing the use of the Time of Sale Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall be pending or to its knowledge, threatened by the Commission or any state or regulatory body;   Placement Agency Agreement   Page 22   (iv)         the Registration Statement and each amendment thereto, at the Time of Sale and as of the date of this Agreement and as of the Closing Date did not include any untrue statement of a material fact and did not omit to state a therein not misleading, and the Time of Sale Prospectus, as of the Time of Sale and as of the Closing Date, any Issuer Free Writing Prospectus as of its date and as of the Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date, did not the circumstances in which they were made, not misleading; and (v)          no event has occurred as a result of which it is necessary to amend or supplement the Registration Statement, the Prospectus or the Time of Sale Prospectus in order to make the statements therein not untrue or misleading in any material respect. (k)          NASDAQ Capital Market.  The Common Shares shall have been listed and authorized for trading on the NASDAQ Capital Market.   (l)           No FINRA Objection.  The Placement Agent shall not have received any unresolved objection from the FINRA as to the fairness and reasonableness of the amount of compensation allowable or payable to the Placement Agent in connection with the issuance and sale of the Securities.   (m)         Stock Purchase Agreement.  The Company shall have entered into the Stock Purchase Agreement with the Investors, and such agreement shall be in full force and effect on the Closing Date.   (n)          Lock-Up Letters.  The Placement Agent shall have received the written agreements, substantially in the form of Exhibit B hereto, of all of the executive officers and directors of the Company and their affiliates set forth on Schedule II.   (o)          Additional Documents.  Prior to the Closing Date, the Company shall have furnished to the Placement Agent such further information, certificates or documents as the Placement Agent shall have reasonably requested.   All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Placement Agent.   If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Placement Agent by notice to the Company at any time prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 4, Section 6 and Section 8 hereof shall at all times be effective and shall survive such termination.   Placement Agency Agreement   Page 23   7.           Indemnification and Contribution.   (a)           Indemnification of the Placement Agent.  The Company agrees to indemnify and hold harmless the Placement Agent, each person, if any, who controls the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Placement Agent within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by, arising out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, or any any Preliminary Prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus, any issuer information that the Company has filed, or is required to file, pursuant to Rule 433(d) of the Securities Act, any road show not constituting a free writing prospectus, or the Prospectus or any amendment or supplement thereto, or any omission or alleged omission to state therein a therein, in light of the circumstances in which there were made, not misleading or (iii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein or in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; provided, however, that the Company shall not be liable under this Section 6(a) to the extent that such losses, claims, damages or liabilities are caused by, arise out of or are based upon any such untrue statement or omission or alleged untrue statement or omission made therein in reliance upon and in conformity with information relating to any Placement Agent furnished to the Company in writing by such Placement Agent expressly for use therein.   (b)           Indemnification of the Company.  The Placement Agent agrees to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by, arising from or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any Company information that the Company has filed, or is required therein, in light of the circumstances in which there were made, not misleading, or omission or alleged untrue statement or omission was made therein in reliance upon and in conformity with information relating to the Placement Agent furnished to the Company in writing expressly for use therein.   Placement Agency Agreement   Page 24     (c)           Notice and Procedures.  In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b) such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding.  In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.  It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Placement Agent and all persons, if any, who control the Placement Agent within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of the Placement Agent within the meaning of Rule 405 under the Securities Act, and (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred.  In the case of any such separate firm for the Placement Agent and such control persons and affiliates of the Placement Agent, such firm shall be designated in writing by the Placement Agent.  In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company.  The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.  Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.  No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.   (d)           Contribution.  To the extent the indemnification provided for in Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Company on the one hand and the Placement Agent on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total commissions received by the Placement Agent bear to the aggregate price of the Securities.  The relative fault of the Company on the one hand and the Placement Agent on the other hand shall be determined by reference to, among other things, omission or alleged omission to state a material fact relates to information supplied by the Company or by the Placement Agent and the parties’ relative such statement or omission.   Placement Agency Agreement   Page 25     (e)           Allocation.  The Company and the Placement Agent agrees that it would not be just or equitable if contribution pursuant to this Section 6 were not take account of the equitable considerations referred to in Section 6(d).  The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 6(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this Section 6, the Placement Agent shall not be required to contribute any amount in excess of the total commissions received by it in accordance with Section 1(b) less the amount of any damages that the Placement Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  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.  The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.   (f)           Representations and Agreements to Survive Delivery.  The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Placement Agent, any person controlling the Placement Agent or any affiliate of the Placement Agent, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.   8.           Information Furnished by Placement Agent.  The Company acknowledges that the statements set forth in under the heading “Plan of Distribution” in the Prospectus (the “Placement Agent’s Information”) constitute the only information relating to the Placement Agent furnished in writing to the Company by the Placement Agent as such information is referred to in Sections 2 and 6 hereof.   9.           Termination.  The Placement Agent shall have the right to terminate this Agreement by giving notice as hereinafter specified at any time at or prior to the Closing Date, without liability on the part of the Placement Agent to the Company, if (i) prior to delivery and payment for the Securities (A) trading in securities generally shall have been suspended on or by the New York Stock Exchange, the NASDAQ Global Market, the NASDAQ Capital Market or in the over the counter market (each, a “Trading Market”), (B) trading in the Common Stock of the Company shall have been suspended on any exchange, in the over-the-counter market or by the Commission, or (C) a general moratorium on commercial banking activities shall have been declared by federal or New York state authorities or a material disruption shall have occurred in commercial banking or securities settlement or clearance services in the United States, (ii) since the time of execution of this Agreement or the earlier respective dates as of which information is given in the Time of Sale Prospectus or incorporated by reference therein, there has been any material adverse effect, (iii) the Company shall have failed, refused or been unable to comply with the material terms or perform any material agreement or obligation of this Agreement or the Stock Purchase Agreement, other than by reason of a default by the Placement Agent, or (iv) any condition of the Placement Agent’s obligations hereunder is not fulfilled.  This Agreement may be terminated by any party on or after March 31, 2014.  Any such that the provisions of Section 4, Section 6, and Section 12 hereof shall at all times be effective notwithstanding such termination.   Placement Agency Agreement   Page 26     10.           Notices.  All statements, requests, notices and agreements hereunder shall be in writing or by facsimile, and:   (a)           if to the Placement Agent, shall be delivered or sent by mail, telex or e-mail transmission as follows:   Minneapolis, MN  55402 Attention:  Shawn Messner Faegre Baker Daniels LLP 2200 Wells Fargo Center Minneapolis, MN 55402-3901 Attention:  Jonathan R. Zimmerman Facsimile No.: (612) 766-1600 (b)           if to the Company shall be delivered or sent by mail, telex or facsimile transmission to:   MagneGas Corporation 150 Rainville Road Tarpon Springs, FL 34689 Szaferman Lakind Blumstein & Blader, PC 101 Grovers Mill Road, Second Floor Lawrenceville, NJ 08648 Attention:  Gregg Jaclin Facsimile No.: (609) 275-4511 Any such statements, requests, notices or agreements shall be effective only upon receipt. Any party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. 11.           Persons Entitled to Benefit of Agreement.  This Agreement shall inure to the benefit of and shall be binding upon the Placement Agent, the Company, and their respective successors and assigns.  Nothing expressed or other than the persons mentioned in the preceding sentence any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person, except that the representations, warranties, covenants, agreements and indemnities of the Company contained in this Agreement shall also be for the benefit of the controlling persons, officers and directors referred to in Section 6(a) hereof and the indemnities of the Placement Agent shall also be for the benefit of the controlling persons, officers and directors referred to in Section 6(b) hereof.   Placement Agency Agreement   Page 27     12.           Governing Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the conflicts of laws provisions thereof.   13.           No Fiduciary Relationship. The Company hereby acknowledges and agrees that:   (a)           No Other Relationship.  The Placement Agent has been retained solely to act as the exclusive placement agent in connection with the offering of the Company’s securities.  The Company further acknowledges that the Placement Agent is acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm’s length basis and in no event do the parties intend that the Placement Agent act or be responsible as a fiduciary to the Company, its management, stockholders, creditors or any other person in connection with any activity that the Placement Agent may undertake or has undertaken in furtherance of the offering of the Company’s securities, either before or after the date hereof, irrespective of whether the Placement Agent has advised or is advising the Company on other matters.  The Placement Agent hereby expressly disclaims any fiduciary or similar obligations to the Company, either in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions, and the Company hereby confirms its understanding and agreement to that effect.   (b)           Arm’s-Length Negotiations.  The price of the Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Investors, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement.   (c)           Absence of Obligation to Disclose.  The Company has been advised that the Placement Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Placement Agent has no obligation to disclose such interests or transactions to the Company by virtue of any fiduciary, advisory or agency relationship.   (d)           Waiver.  The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of any fiduciary or similar duty to the Company in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions and agrees that the Placement Agent shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim to any person asserting a fiduciary duty claim on behalf of the Company, including stockholders, employees or creditors of the Company.   14.           Headings.  The Section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement.   15.           Amendments and Waivers.  No supplement, modification or waiver of bound thereby. The failure of a party to exercise any right or remedy shall not be deemed or constitute a waiver of such right or remedy in the future.  No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (regardless of whether similar), nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided.   16.           Counterparts.  This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original and all such counterparts shall together constitute one and the same instrument.  Delivery of an executed counterpart by facsimile or portable document format (.pdf) shall be effective   Placement Agency Agreement   Page 28     17.           Research Analyst Independence.  The Company acknowledges that the Placement Agent’s research analysts and research departments are required to be independent from its investment banking division and are subject to certain regulations and internal policies, and that such Placement Agent’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their investment banking division.  The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any conflict of interest that may arise from the fact that the views expressed by its independent research analysts and research department may be different from or inconsistent with the views or advice communicated to the Company by the Placement Agent’s investment banking division.  The Company acknowledges that the Placement Agent is a full service securities firm and as such from time to time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the Company; provided, however, that nothing in this Section 16 shall relieve any Placement Agent of any responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations.   18.           Entire Agreement.  This Agreement constitutes the entire agreement of the parties to this Agreement with respect to the Company’s offering, issuance and sale of the Securities and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof, other than the Letter Agreement to the extent not inconsistent with this Agreement.   19.           Partial Unenforceability.  The invalidity or unenforceability of any section, paragraph, clause or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph, clause or provision hereof.  If any section, paragraph, clause or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.   20.           Effectiveness.  This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.     Placement Agency Agreement   Page 29     If the foregoing is in accordance with your understanding of the agreement between the Company and the Placement Agent, kindly indicate your acceptance in the space provided for that purpose below.   Very truly yours, MagneGas Copration By:     Name: Luisa Ingargiola   Title: Chief Financial Officer   Accepted as of the date hereof     By:     Name: Shawn Messner   Title: Managing Partner   Placement Agency Agreement   Signature Page     Schedules and Exhibits Schedule I   Issuer Free Writing Prospectus       Schedule II   List of Directors, Officers for Lock-Up Letter       Exhibit A:   Stock Purchase Agreement       Exhibit B:   Form of Lock-Up Letter       Exhibit C   Form of Agent Warrants Placement Agency Agreement   Schedules & Exhibits Index     Schedule I Issuer Free Writing Prospectus   None.   Placement Agency Agreement   Schedule I     Schedule II List of Directors, Officers, and other Holders For Lock-Up Letter Clean Energy Tech* Global Alpha, LLC* Global Beta, LLC* Carla Santilli* Dr. Ruggero Santilli* Jacques D. Kerrest Ermanno Santilli Luisa Ingargiola Kevin Pollack Christopher B. Huntington RM Santilli Foundation* William Staunton III Robert Dingess Joe Stone * Subject to a 30 day lock-up period.  The remainder on this list are subject to a 90 day lock-up period.   Placement Agency Agreement   Schedule II     Exhibit A Form of Stock Purchase Agreement [See Attached]             Placement Agency Agreement   Exhibit A-1   SECURITIES PURCHASE AGREEMENT   This Securities Purchase Agreement (this “Agreement”) is dated as of March 25, 2014, between MagneGas Corporation, a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).   1933, as amended (the “Securities Act”) as to the Shares and Preferred Stock, and (ii) an exemption from the registration requirements of Section 5 of the Securities Act contained in Section 4(a)(2) thereof and/or Regulation D thereunder as to the Warrants, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.   as follows:   DEFINITIONS    Definitions.  In addition to the terms defined elsewhere in this Agreement, (a) capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Certificate of Designation (as defined herein), and (b) the following terms have the meanings set forth in this Section 1.1:   “Acquiring Person” shall have the meaning ascribed to such term in Section 4.7.     Securities Act.       “Certificate of Designation” means the Certificate of Designation to be filed prior to the Closing by the Company with the Secretary of State of Delaware, in the form of Exhibit A attached hereto.   Placement Agency Agreement   Exhibit A-2     to Section 2.1.   case, have been satisfied or waived, but in no event later than the third    “Closing Statement” means the Closing Statement in the form on Annex A attached hereto.         “Company Counsel” means Szaferman Lakind Blumstein & Blader, PC, with offices located at 101 Grovers Mill Road, 2nd Floor, Lawrenceville, NJ 08648.   “Conversion Price” shall have the meaning ascribed to such term in the Certificate of Designation.   “Conversion Shares” shall have the meaning ascribed to such term in the Certificate of Designation.   concurrently herewith.   “Effective Date” means the earliest of the date that (a) the Resale Registration Statement has been declared effective by the Commission, (b) all of the Registrable Securities have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 and without volume or manner-of-sale restrictions or (c) following the one year anniversary of the Closing Date provided that a holder of Registrable Securities is not an Affiliate of the Company, all of the Registrable Securities may be sold pursuant to an exemption from registration under Section 4(1) of the Securities Act without volume or manner-of-sale restrictions and Company counsel has delivered to such holders a standing written unqualified opinion that resales may then be made by such holders of the Registrable Securities pursuant to such exemption which opinion shall be in form and substance reasonably acceptable to such holders.   Placement Agency Agreement   Exhibit A-3       3.1(r).   non-employee directors established for such purpose, (b) up to 1,000,000 shares of Common Stock (subject to adjustment for forward and reverse stock splits, recapitalizations and the like), in the aggregate, to professional service providers pursuant to a written agreement, provided that such shares of Common Stock are not registered and carry no registration rights, (c) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, and (d) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a investing in securities.         Section 3.1(o).   4.18(c).   Placement Agency Agreement   Exhibit A-4       3.1(m).   “Maximum Rate” shall have the meaning ascribed to such term in Section 5.17. “Participation Maximum” shall have the meaning ascribed to such term in Section 4.12(a).   “Per Share Purchase Price” equals $1.45, subject to adjustment for reverse and   of any kind.   “Pre-Notice” shall have the meaning ascribed to such term in Section 4.12(b).   “Preferred Stock” means the up to _________ shares of the Company’s Series C Convertible Preferred Stock issued hereunder having the rights, preferences and privileges set forth in the Certificate of Designation.   “Pro Rata Portion” shall have the meaning ascribed to such term in Section 4.12(e).         “Public Information Failure” shall have the meaning ascribed to such term in Section 4.3(b).   “Public Information Failure Payments” shall have the meaning ascribed to such term in Section 4.3(b).   “Purchaser Party” shall have the meaning ascribed to such term in Section 4.10.   Placement Agency Agreement   Exhibit A-5     “Registration Rights Agreement” means the Registration Rights Agreement, dated the date hereof, among the Company and the Purchasers, in the form of Exhibit B attached hereto. Commission file No. 333-188661 which registers the sale of the Shares, the Preferred Stock and the shares underlying the Preferred Stock to the Purchasers.     “Required Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon exercise in full of all Warrants or conversion in full of all shares of Preferred Stock, ignoring any conversion or exercise limits set forth therein.   “Resale Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale of the Warrant Shares by each Purchaser as provided for in the Registration Rights Agreement.         “Securities” means the Shares, the Preferred Stock, the Warrants and the Underlying Shares.   regulations promulgated thereunder.   pursuant to this Agreement at the Closing.   under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).    Placement Agency Agreement   Exhibit A-6     “Stated Value” means $1,000 per share of Preferred Stock.   paid for Shares, Preferred Stock and Warrants purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately available funds.   “Subsequent Financing” shall have the meaning ascribed to such term in Section   “Subsequent Financing Notice” shall have the meaning ascribed to such term in Section 4.12(b).     trading.     “Transaction Documents” means this Agreement, the Certificate of Designation, the Warrants, the Registration Rights Agreement, all exhibits and schedules thereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.   “Transfer Agent” means Corporate Stock Transfer, the current transfer agent of the Company, with a mailing address of 3200 Cherry Creek Drive South, Suite 430, Denver, CO 80209 and any successor transfer agent of the Company.   “Underlying Shares” means the Conversion Shares and the Warrant Shares.   Section 4.13(b).   Purchasers of a majority in interest of the Securities then outstanding and   Placement Agency Agreement   Exhibit A-7     “Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which Warrants shall be initially exercisable on the six (6) month anniversary of the issuance date and have a term of exercise equal to five (5) years from the date on which first exercisable, in the form of Exhibit C attached hereto.   Warrants.   PURCHASE AND SALE   Closing.  On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly,  agree to purchase, up to an aggregate of $5,000,000 of (i) shares of Preferred Stock with an aggregate Stated Value for each Purchaser equal to ____% of such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, (ii) Shares for each Purchaser equal to ____% of such Purchaser’s Subscription Amount divided by the Per Share Purchase Price and (iii) Warrants as determined pursuant to Section 2.2(a)(v).  The aggregate number of shares of Preferred Stock sold hereunder shall be up to ______ and the aggregate number of Shares sold hereunder shall be up to _____________.  Each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser and the Company shall deliver to each Purchaser its respective Shares, shares of Preferred Stock and a Warrant as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing.  Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of EGS or such other location as the parties shall mutually agree.  The Company covenants that, if the Purchaser delivers a Notice of Conversion (as defined in the Certificate of Designation) to convert any shares of Preferred Stock between the date hereof and the Closing Date, the Company shall deliver Conversion Shares to the Purchaser on the Closing Date in connection with such Notice of Conversion.   Deliveries.     this Agreement duly executed by the Company;   a legal opinion of Company Counsel, substantially in the form of Exhibit D attached hereto;   a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to ____% of such Purchaser’s Subscription Amount divided by the Per Share Purchase Price,   a certificate evidencing a number of shares of Preferred Stock equal to _____% of such Purchaser’s Subscription Amount divided by the Stated Value, registered in the name of such Purchaser and evidence of the filing and acceptance of the Certificate of Designation from the Secretary of State of Delaware;   a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 50% of such Purchaser’s Subscription Amount divided by $1.45, with an exercise price equal to $2.15, subject to adjustment therein;   the Registration Rights Agreement duly executed by the Company; and   the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).   cause to be delivered to the Company the following:   this Agreement duly executed by such Purchaser;   the Registration Rights Agreement duly executed by such Purchaser; and   such Purchaser’s Subscription Amount by wire transfer to the account specified in writing by the Company.   Closing Conditions.     the accuracy in all material respects on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date   Placement Agency Agreement   Exhibit A-8     all obligations, covenants and agreements of each Purchaser required to be   Agreement.   (b)           The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:   the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein);   all obligations, covenants and agreements of the Company required to be   Agreement;   the Certificate of Designation shall have been filed with and be effective in the State of Delaware;   there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and   from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.   REPRESENTATIONS AND WARRANTIES   1.3           Representations and Warranties of the Company.  Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:   Company are set forth on Schedule 3.1(a).  The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.  If the Company has no subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.   Placement Agency Agreement   Exhibit A-9     Organization and Qualification.  The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good properties and assets and to carry on its business as currently conducted.  Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents.  Each of the Company and the Subsidiaries is duly qualified to conduct business and is in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of   Authorization; Enforcement.  The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.  The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been   Placement Agency Agreement   Exhibit A-10     No Conflicts.  The execution, delivery and performance by the Company of this Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to   than: (i) the filings required pursuant to Section 4.6 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing with the Commission pursuant to the Registration Rights Agreement, (iv) the notice and/or application(s) to each applicable Trading Market for the issuance and sale of the Securities and the listing of the Shares and Underlying Shares for trading thereon in the time and manner required thereby and (v) the filing of Form D with the Commission and such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).   Issuance of the Securities; Registration.  The Securities are duly authorized and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents.  The Underlying Shares, when issued in accordance with the terms of the Transaction Documents, will be imposed by the Company other than restrictions on transfer provided for in the Transaction Documents.  The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock for issuance of (i) the Shares and (ii) the Underlying Shares at least equal to the Required Minimum on the date hereof. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which became effective on May 28, 2013, including the Prospectus, and such amendments the Prospectus and any amendments or supplements thereto, at time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the not misleading.   Placement Agency Agreement   Exhibit A-11     Capitalization.  The capitalization of the Company is as set forth on Schedule 3.1(g).  The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act.  No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents.  Except as a result of the purchase and sale of the Securities, there Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents.  The issuance and sale of the Securities will not Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.  No further approval or authorization of any stockholder, the Board the Company’s stockholders.   Placement Agency Agreement   Exhibit A-12     Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing.  Such financial statements have been prepared in accordance with   Material Changes; Undisclosed Events, Liabilities or Developments.  Since the except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has been no event, occurrence or development that has had required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or option plans.  The Company does not have pending before the Commission any request for confidential treatment of information.  Except for the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(i), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.   Placement Agency Agreement   Exhibit A-13     or affecting the Company, any Subsidiary or any of their respective properties enforceability of any of the Transaction Documents or the Securities or (ii) result in a Material Adverse Effect.  Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action laws or a claim of breach of fiduciary duty.  There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company.  The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.   Labor Relations.  No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could Material Adverse Effect.   Placement Agency Agreement   Exhibit A-14     Compliance.  Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.   Regulatory Permits.  The Company and the Subsidiaries possess all certificates, foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.   Title to Assets.  The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and property by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties.  Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.   Intellectual Property.  The Company and the Subsidiaries have, or have rights to (collectively, the “Intellectual Property Rights”).  None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement.  Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect.  To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing   Placement Agency Agreement   Exhibit A-15     Insurance.  The Company and the Subsidiaries are insured by insurers of officers insurance coverage at least equal to the aggregate Subscription Amount.  Neither the Company nor any Subsidiary has any reason to believe that necessary to continue its business without a significant increase in cost.   to the knowledge of the Company, none of the employees of the Company or any   Sarbanes-Oxley; Internal Accounting Controls.  The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date.  The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance assets is permitted only in accordance with management’s general or specific the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established controls and procedures to ensure that information required to be disclosed by in the Commission’s rules and forms.  The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date.  Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.   Placement Agency Agreement   Exhibit A-16     Certain Fees.  Except as set forth in the Prospectus Supplement, no brokerage or Documents.   Private Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, no registration under the Securities Act is required for the offer and sale of the Warrants and Warrant Shares by the Company to the Purchasers as contemplated hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market.     Registration Rights.  Other than each of the Purchasers, no Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.   Listing and Maintenance Requirements.  The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration.  The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.   Placement Agency Agreement   Exhibit A-17     Application of Takeover Protections.  The Company and the Board of Directors   Disclosure.  Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms constitutes or might constitute material, non-public information.   The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company.  All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not therein, in light of the circumstances under which they were made and when made, not misleading.  The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions hereof.   Placement Agency Agreement   Exhibit A-18     No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.   laws of any jurisdiction within one year from the Closing Date.  Schedule 3.1(aa) sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.  For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP.  Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.     Placement Agency Agreement   Exhibit A-19     Foreign Corrupt Practices.  Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on   Accountants.  The Company’s accounting firm is set forth on Schedule 3.1(dd) of the Disclosure Schedules.  To the knowledge and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December 31, 2013.   Seniority.  As of the Closing Date, no Indebtedness or other claim against the Company is senior to the Preferred Stock in right of payment, whether with respect to interest or upon liquidation or dissolution, or otherwise, other than indebtedness secured by purchase money security interests (which is senior only as to underlying assets covered thereby) and capital lease obligations (which is senior only as to the property covered thereby).   No Disagreements with Accountants and Lawyers.  There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any of its obligations under any of the Transaction Documents.   Acknowledgment Regarding Purchasers’ Purchase of Securities.  The Company and the transactions contemplated thereby.  The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the   Placement Agency Agreement   Exhibit A-20     Acknowledgement Regarding Purchaser’s Trading Activity.  Anything in this Sections 3.2(f) and 4.14 hereof), it is understood and acknowledged by the “short” position in the Common Stock, and (iv) each Purchaser shall not be the Underlying Shares deliverable with respect to Securities are being the existing stockholders' equity interests in the Company at and after the time Transaction Documents.     Form S-3 Eligibility.  The Company is eligible to register the resale of the Warrant Shares for resale by the Purchaser on Form S-3 promulgated under the Securities Act.   Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair   Placement Agency Agreement   Exhibit A-21     Office of Foreign Assets Control.  Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director, officer, agent, employee or affiliate of the Company  or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).   U.S. Real Property Holding Corporation.  The Company is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.   Bank Holding Company Act.  Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended (the   Money Laundering.  The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.   Each Purchaser, for itself and for no other Purchaser, acknowledges and agrees that the representations contained in Section 3.1 shall not modify, amend or affect the Company’s right to rely on such Purchaser’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transaction contemplated hereby.   Representations and Warranties of the Purchasers.  Each Purchaser, for itself date therein):   or an entity duly incorporation or formation, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser.  Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as   Placement Agency Agreement   Exhibit A-22     Warrants and Warrant Shares are “restricted securities” and have not been is acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to a registration statement or otherwise in compliance with applicable federal and the ordinary course of its business.   (c)           Opportunity to Obtain Information. Such Purchaser acknowledges that representatives of the Company have made available to such Purchaser the opportunity to review the books and records of the Company and its Subsidiaries and to ask questions of and receive answers from such representatives concerning the business and affairs of the Company and its Subsidiaries.   (d)           Purchaser Status.  At the time such Purchaser was offered the it converts any shares of Preferred Stock or exercises any Warrants, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.   Placement Agency Agreement   Exhibit A-23     (e)           Experience of Such Purchaser.  Such Purchaser, either alone or   (f)            General Solicitation.  Such Purchaser is not purchasing the or any other general solicitation or general advertisement.   (g)           Certain Transactions and Confidentiality.  Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof.  Notwithstanding the foregoing, in the case of a assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.  Other than to other Persons party to this Agreement, such Purchaser has maintained the confidentiality of or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future.   The Company acknowledges and agrees that the representations contained in this Agreement or the consummation of the transaction contemplated hereby.   Placement Agency Agreement   Exhibit A-24       Warrant Shares.  If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares or if the Warrant is exercised via cashless exercise commencing six months after the Closing Date, the Warrant Shares issued pursuant to any such exercise shall be issued free of all legends.  If, at any time following its effective date, the Resale Registration Statement (or any subsequent registration statement registering the sale or resale of the Warrant Shares) is not effective or is not otherwise available for the sale or resale of the Warrant Shares, the Company shall immediately notify the holders of the Warrants in writing that such Resale Registration Statement or other registration statement is not then effective and thereafter shall promptly notify such holders when such Resale Registration Statement or other registration statement is effective again and available for the sale or resale of the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser to sell, any of the Warrant Shares in compliance with applicable federal and state securities laws).  The Company shall use best efforts to keep the Resale Registration Statement registering the issuance or resale of the Warrant Shares effective during the period beginning on its effective date until the expiration of the Warrants.  Upon a cashless exercise of a Warrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.   Acknowledgment of Dilution.  The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding shares of Common Stock, which dilution may be substantial under certain market conditions.  The Company further acknowledges that its obligations under the Transaction Documents, including, without limitation, its obligation to issue the Underlying Shares pursuant to the Transaction Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution or any claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance may have on the ownership of the other stockholders of the Company.   Furnishing of Information; Public Information.   Until the time that no Purchaser owns Securities, the Company covenants to maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the is not then subject to the reporting requirements of the Exchange Act.  As long as any Purchaser owns Securities, if the Company is not required to file reports pursuant to the Exchange Act, it will prepare and furnish to the Purchasers and make publicly available in accordance with Rule 144(c) such information as is required for the Purchasers to sell the Securities, including without limitation, under Rule 144. The Company further covenants that it will take such further action as any holder of Securities may reasonably request, to the extent required from time to time to enable such Person to sell such Securities without registration under the Securities Act, including without limitation, within the requirements of the exemption provided by Rule 144.   Placement Agency Agreement   Exhibit A-25     At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of the Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company shall fail for any reason to satisfy the current public information requirement under Rule 144(c) (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Securities, an amount in cash equal to two percent (2.0%) of the aggregate Subscription Amount of such Purchaser’s Securities on the day of a Public Information Failure and on every thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public information is no longer required  for the Purchasers to transfer the Warrant Shares pursuant to Rule 144.  The payments to which a Purchaser shall be entitled pursuant to this Section 4.3(b) are referred to herein as “Public Information Failure Payments.”  Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured.  In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.   Integration.  The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 Act of the sale of the Preferred Stock and Warrants or that would be integrated   Conversion and Exercise Procedures.  Each of the form of Notice of Exercise included in the Warrants and the form of Notice of Conversion included in the Certificate of Designation set forth the totality of the procedures required of the Purchasers in order to exercise the Warrants or convert the Preferred Stock.  Without limiting the preceding sentences, no ink-original Notice of Exercise or Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise or Notice of Conversion form be required in order to exercise the Warrants or convert the Preferred Stock.  No additional legal opinion, other information or instructions shall be required of the Purchasers to exercise their Warrants or convert their Preferred Stock.  The Company shall honor exercises of the Warrants and conversions of the Preferred Stock and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.   Placement Agency Agreement   Exhibit A-26     Securities Laws Disclosure; Publicity.  The Company shall, by 9:00 a.m. (New York City time) on the Trading Day immediately following the date hereof (or 9:00 a.m. (New York City time) is executed prior to market open on the date hereof) issue a press release disclosing the material terms of the transactions contemplated hereby and, within the period required by the Commission, file a Current Report on Form 8-K.  From and after the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents.  The Company and each Purchaser shall consult with (a) as required by federal securities law in connection with any registration statement contemplated by the Registration Rights Agreement and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).   Shareholder Rights Plan.  No claim will be made or enforced by the Company or, Documents or under any other agreement between the Company and the Purchasers.   conditions of the transactions contemplated by the Transaction Documents, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto such Purchaser shall have entered into a written agreement with the Company regarding the confidentiality and use of such information.  The Company understands and confirms that each Purchaser shall be relying on the   Placement Agency Agreement   Exhibit A-27     Use of Proceeds.  Except as set forth on Schedule 4.9 attached hereto, the regulations.   Indemnification of Purchasers.   Subject to the provisions of this Section 4.10, the Company will indemnify and hold each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles Affiliates, by any stockholder of the Company who is not an Affiliate of such Transaction Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance).  If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party.  Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.  The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the delayed; or (z) to the extent, but only to the extent that a loss, claim, damage indemnification required by this Section 4.10 shall be made by periodic payments   Placement Agency Agreement   Exhibit A-28     Reservation and Listing of Securities.   The Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.   If, on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than 130% of (i) the Required Minimum on such date, minus (ii) the number of shares of Common Stock previously issued pursuant to the Transaction Documents, then the Board of Directors shall use commercially reasonable efforts to amend the Company’s certificate or articles of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time (minus the number of shares of Common Stock previously issued pursuant to the Transaction Documents), as soon as possible and in any event not later than the 75th day after such date, provided that the Company will not be required at any time to authorize a number of shares of Common Stock greater than the maximum remaining number of shares of Common Stock that could possibly be issued after such time pursuant to the Transaction Documents.   The Company shall, if applicable: (i) in the time and manner required by the principal Trading Market, prepare and file with such Trading Market an additional shares listing application covering a number of shares of Common Stock at least equal to the Required Minimum on the date of such application, (ii) take all steps necessary to cause such shares of Common Stock to be approved for listing or quotation on such Trading Market as soon as possible thereafter, (iii) provide to the Purchasers evidence of such listing or quotation and (iv) maintain the listing or quotation of such Common Stock on any date at least equal to the Required Minimum on such date on such Trading Market or another Trading Market.   Participation in Future Financing.   (a)           From the date hereof until the date that is the 12 month anniversary of the Closing Date, upon any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration, Indebtedness or a combination of units hereof (a “Subsequent Financing”), each Purchaser shall have the right to participate in up to an amount of the Subsequent Financing equal to 100% of the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing.   At least five (5) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Purchaser if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”).  Upon the request of a Purchaser, and only upon a request by such Purchaser, for a Subsequent Financing Notice, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to such Purchaser.  The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment.     Placement Agency Agreement   Exhibit A-29     Any Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after all of the Purchasers have received the Pre-Notice that such Purchaser is willing to participate in the Subsequent Financing, the amount of such Purchaser’s participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice.  If the Company receives no such notice from a Purchaser as of such fifth (5th) Trading Day, such Purchaser shall be deemed to have notified the Company that it does not elect to participate.    If by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after all of the Purchasers have received the Pre-Notice, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may effect the remaining portion of such Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice.    the Purchasers have received the Pre-Notice, the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more than the aggregate amount of the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation Maximum.  “Pro Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on the Closing Date by a Purchaser participating under this Section 4.12 and (y) the sum of the aggregate Subscription Amounts of Securities purchased on the Closing Date by all Purchasers participating under this Section 4.12.   The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 4.12, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within 30 Trading Days after the date of the initial Subsequent Financing Notice.   The Company and each Purchaser agree that if any Purchaser elects to participate in the Subsequent Financing, the transaction documents related to the Subsequent Financing shall not include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any of the Securities purchased hereunder or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written consent of such Purchaser.   Placement Agency Agreement   Exhibit A-30     Notwithstanding anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention to issue the securities in the Subsequent Financing, in either case in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the tenth (10th) Business Day following delivery of the Subsequent Financing Notice.  If by such tenth (10th) Business Day, no public disclosure regarding a transaction with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries.   Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance.   Subsequent Equity Sales.   (a)           From the date hereof until 90 Trading Days after the Effective Date, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock, Common Stock Equivalents or any non-equity linked debt.   From the date hereof until the earlier of such time as no Purchaser holds any of the Warrants and the second anniversary of the Closing Date, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction.  “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible additional shares of Common Stock either (A) at a conversion price, exercise whereby the Company may issue securities at a future determined price.  Any Purchaser shall be entitled to obtain injunctive relief against the Company to collect damages.   Placement Agency Agreement   Exhibit A-31     Notwithstanding the foregoing, this Section 4.13 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an Exempt Issuance.   Equal Treatment of Purchasers.  No consideration (including any modification of Agreement.  For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise.   Certain Transactions and Confidentiality. Each Purchaser, severally and not 4.6.  Each Purchaser, severally and not jointly with the other Purchasers, release as described in Section 4.6, such Purchaser will maintain the information included in the Transaction Documents and the Disclosure Schedules.  Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6 and (iii) no Purchaser shall have any duty of confidentiality to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.6.  Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect investment decision to purchase the Securities covered by this Agreement.   respect to the Warrants and Warrant Shares, if required under Regulation D, and Purchasers at the Closing under applicable securities or “Blue Sky” laws of the upon request of any Purchaser.   Placement Agency Agreement   Exhibit A-32     Capital Changes.  Until the one year anniversary of the Closing Date, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock without the prior written consent of the Purchasers holding a majority in interest of the shares of Preferred Stock, unless solely in connection with maintaining the listing of the Common Stock on the Nasdaq Stock Market.   Transfer Restrictions.   The Shares shall be issued free of legends.  The Securities may only be disposed of in compliance with state and federal securities laws.  In connection with any transfer of any Securities (excluding the Shares) other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.18(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company (the fees and expenses of which shall be paid by the Company), the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act.  As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and the Registration Rights Agreement and shall have the rights and obligations of a Purchaser under this Agreement and the Registration Rights Agreement.   The Purchasers agree to the imprinting, so long as is required by this Section 4.18, of a legend on any of the Preferred Stock, Warrants and Underlying Shares in the following form:   [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE] [CONVERTIBLE]] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ACCEPTABLE TO THE COMPANY. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON [EXERCISE] [CONVERSION] OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES   Placement Agency Agreement   Exhibit A-33     Securities Act and who agrees to be bound by the provisions of this Agreement and the Registration Rights Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Securities to the pledgees or secured parties.  Such a pledge or transfer would not be subject to secured party or pledgor shall be required in connection therewith.  Further, no notice shall be required of such pledge.  At the appropriate Purchaser’s pledgee or secured party of Securities may reasonably request in connection with to registration pursuant to the Registration Rights Agreement, the preparation Securities Act or other applicable provision of the Securities Act to appropriately amend the list of Selling Stockholders (as defined in the Registration Rights Agreement) thereunder.   The shares underlying the Preferred Stock shall not contain any legend upon conversion.  Certificates evidencing the Warrant Shares shall not contain any legend (including the legend set forth in Section 4.18(b) hereof): (i) while a registration statement (including the Resale Registration Statement) covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Warrant Shares pursuant to Rule 144, (iii) if such Underlying Shares are eligible for sale under Rule 144 or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any shares of the Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares, or if such Warrant Shares may be sold under Rule 144 or if such legend is not otherwise required under applicable pronouncements issued by the staff of the Commission) then such Warrant Shares shall be issued free of all legends.  The Company agrees that following the Effective Date or at such time as such legend is no longer required under this Section 4.18(c), it will, no later than three Trading Days following the representing Underlying Shares, as applicable, issued with a restrictive legend (such third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other legends.  The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4.  Certificates for Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by such Purchaser.   Placement Agency Agreement   Exhibit A-34     In addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of Warrant Shares (based on the VWAP of the Common Stock on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.18(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered without a legend.  Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.   Each Purchaser, severally and not jointly with the other Purchasers, agrees with the Company that such Purchaser will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Securities as set forth in this Section 4.18 is predicated upon the Company’s reliance upon this understanding.   MISCELLANEOUS   the other parties, if the Closing has not been consummated on or before March __, 2014; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).   Fees and Expenses.  At the Closing, the Company has agreed to reimburse Alpha Capital Anstalt (“Alpha”) the non-accountable sum of $50,000 for its legal fees and expenses.  Accordingly, in lieu of the foregoing payment, the aggregate amount that Alpha pay for the Securities at the Closing shall be reduced by $50,000 in lieu thereof.  The Company shall deliver to each Purchaser, prior to the Closing, a completed and executed copy of the Closing Statement, attached hereto as Annex A.  Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.  The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any conversion or exercise   Placement Agency Agreement   Exhibit A-35     Entire Agreement.  The Transaction Documents, together with the exhibits and   Notices.  Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given.  The address for such notices and communications shall be as set forth on the signature pages attached hereto.   amendment, by the Company and the Purchasers holding at least 67% in interest of the Shares based on the initial Subscription Amounts hereunder or, in the case is sought.  No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.   provisions hereof.   benefit of the parties and their successors and permitted assigns.  The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger).  Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that such “Purchasers.”   No Third-Party Beneficiaries.  This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not Person, except as otherwise set forth in Section 4.10.   Placement Agency Agreement   Exhibit A-36     Governing Law.  All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and York, without regard to the principles of conflicts of law thereof.  Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding.  Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.  If either party shall commence an action, suit or proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section 4.10, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.   Survival.  The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.   Execution.  This Agreement may be executed in two or more counterparts, all of   Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or   Placement Agency Agreement   Exhibit A-37     Rescission and Withdrawal Right.  Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole however, that in the case of a rescission of a conversion of the Preferred Stock or an exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded conversion or exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).   Replacement of Securities.  If any certificate or instrument evidencing any   Remedies.  In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction assert in any action for specific performance of any such obligation the defense   Payment Set Aside.  To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.   Placement Agency Agreement   Exhibit A-38     Usury.  To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection with any claim, action or proceeding that may be brought by any Purchaser in order to enforce any right or remedy under any Transaction Document.  Notwithstanding any provision to the contrary contained in any Transaction Document, it is expressly agreed and provided that the total liability of the Company under the Transaction Documents for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest that the Company may be obligated to pay under the Transaction Documents exceed such Maximum Rate.  It is agreed that if the maximum contract rate of interest allowed by law and applicable to the Transaction Documents is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to the Transaction Documents from the effective date thereof forward, unless such application is precluded by applicable law.  If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to any Purchaser with respect to indebtedness evidenced by the Transaction Documents, such excess shall be applied by such Purchaser to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling such excess to be at such Purchaser’s election.   Independent Nature of Purchasers’ Obligations and Rights.  The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any Transaction Documents.  Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.  Each Purchaser has been represented by its own its respective counsel have chosen to communicate with the Company through Alpha.  The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it among the Purchasers.   Placement Agency Agreement   Exhibit A-39     Liquidated Damages.  The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated   Saturdays, Sundays, Holidays, etc.  If the last or appointed day for the taking   addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions   WAIVER OF JURY TRIAL.  IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.     Placement Agency Agreement   Exhibit A-40       MAGNEGAS CORPORATION   Address for Notice: By:__________________________________________      Name:      Title:   Fax:   Placement Agency Agreement   Exhibit A-41     [PURCHASER SIGNATURE PAGES TO MNGA SECURITIES PURCHASE AGREEMENT]     _________________________________         Facsimile Number of Authorized Signatory: ______________________________________     Address for Delivery of Preferred Stock and Warrants to Purchaser (if not same as address for notice):   Shares: _________________ Shares of Preferred Stock: ________________ Warrant Shares: __________________ EIN Number: _______________________     Placement Agency Agreement   Exhibit A-42     Annex A   CLOSING STATEMENT Pursuant to the attached Securities Purchase Agreement, dated as of the date hereto, the purchasers shall purchase up to $5,000,000 of Common Stock, Preferred Stock and Warrants from MagneGas Corporation, a Florida corporation (the “Company”).  All funds will be wired into an account maintained by the Company.  All funds will be disbursed in accordance with this Closing Statement. Disbursement Date: March ___, 2014   I.   PURCHASE PRICE       Gross Proceeds to be Received $     II.   DISBURSEMENTS         $     $     $     $     $     Total Amount Disbursed: $             WIRE INSTRUCTIONS:         See attached.   Acknowledged and agreed to this ___ day of March, 2014   MAGNEGAS CORPORATION   By: ­_____________________ Name: Title:   Placement Agency Agreement   Exhibit A-43     Exhibit B   Form of Lock Up Agreement [See Attached]             Placement Agency Agreement   Exhibit B-1     ____________________, 2014   45 South 7th Street, Suite 2000 Minneapolis, MN 55402   Dear Sirs:   As an inducement to Northland Securities, Inc., the underwriter (the “Underwriter”) to execute a purchase agreement (the “Purchase Agreement”) providing for a public offering (the “Offering”) of common stock (the “Common Stock”), or any other securities of MagneGas Corporation and any successor (by merger or otherwise) thereto (the “Company”), the undersigned hereby agrees that without, in each case, the prior written consent of the Underwriter during the period specified in the second succeeding paragraph (the “Lock-Up Period”), the undersigned will not: (1) offer, pledge, announce the intention to sell, sell, or contract to sell, grant any option, right or warrant to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, exercisable or exchangeable for or that represent the right to receive Common Stock (including without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) whether now owned or hereafter acquired (the “Undersigned’s Securities”); (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Undersigned’s Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to, the registration of any Common Stock or any security convertible into or exercisable or exchangeable for Common Stock; or (4) publicly disclose the intention to do any of the foregoing.   The undersigned agrees that the foregoing restrictions preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned’s 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) with respect to any of the Undersigned’s Securities or with respect to any security that includes, relates to, or derives any significant part of its value from such Securities.   The initial Lock-Up Period will commence on the date of this Agreement and continue and include the date [90]* days after the date of the final prospectus used to sell Common Stock in the Offering pursuant to the Purchase Agreement, to which you are or expect to become parties; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the initial Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of such earnings results or material news, or the occurrence of such material event, as applicable, unless the Underwriter, waives, in writing, such extension.   The undersigned hereby acknowledges that the Company will be requested to agree in the Purchase Agreement to provide written notice to the undersigned of any event that would result in an extension of the Lock-Up Period pursuant to the previous paragraph and agrees that any such notice properly delivered will be deemed to have been given to, and received by, the undersigned.  The undersigned further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this Agreement during the period from the date of this Agreement to and including the 34th day following the expiration of the initial Lock-Up Period, it will give notice thereof to the Company and will not consummate such transaction or take any such action unless it has received written confirmation from the Company that the Lock-Up Period (as may have been extended pursuant to the previous paragraph) has expired.                                                                 * Those holders noted on Schedule II are only subject to a 30 day lock-up period.   Placement Agency Agreement   Exhibit B-2     If the undersigned is an officer or director of the Company, (i) the Underwriter agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, the Underwriter will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Purchase Agreement to announce the impending release or waiver by issuing a press release through a major news service at least two business days before the effective date of the release or waiver.  Any release or waiver granted by the Underwriter hereunder to any such officer or director shall only be effective two business days after the publication date of such press release.  The provisions of this paragraph will not apply if both (a) the release or waiver is effected solely to permit a transfer not for consideration, and (b) the transferee has agreed in writing to be bound by the same terms described in this letter that are applicable to the transferor, to the extent and for the duration that such terms remain in effect at the time of the transfer.  The undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed Common Stock that the undersigned may purchase in the offering.   Notwithstanding the foregoing, the undersigned may transfer the Undersigned’s Securities (i) as a bona fide gift or gifts, (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, company, trust or other business entity (1) transfers 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) of the undersigned or (2) distributions of shares of Common Stock or any security convertible into or exercisable for Common Stock to limited partners, limited liability company members or stockholders of the undersigned, (iv) if the undersigned is a trust, transfers to the beneficiary of such trust, (v) transfers by testate succession or intestate succession or (vi) pursuant to the Purchase Agreement in connection with this Offering; provided, in the case of clauses (i)-(v), that (x) such transfer shall not involve a disposition for value, (y) the transferee agrees in writing with the Underwriter to be bound by the terms of this Lock-Up Agreement, and (z) no filing by any party under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be made voluntarily in connection with such transfer.  For purposes of this Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, nor more remote than first cousin.   In addition, the foregoing restrictions shall not apply (i) the exercise of stock options granted pursuant to the Company’s equity incentive plans; provided that it shall apply to any of the Undersigned’s Securities issued upon such 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 no sales of the Undersigned’s Securities shall be made pursuant to such a Plan prior to the expiration of the Lock-Up Period (as such may have been extended pursuant to the provisions hereof), and such a Plan may only be established if no public announcement of the establishment or existence thereof and no filing with the Securities and Exchange Commission or other regulatory authority in respect thereof or transactions thereunder or contemplated thereby, by the undersigned, the Company or any other person, shall be required, and no such announcement or filing is made voluntarily, by the undersigned, the Company or any other person, prior to the expiration of the Lock-Up Period (as such may have been extended pursuant to the provisions hereof).   Placement Agency Agreement   Exhibit B-3     In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer of shares of Common Stock if such transfer would constitute a violation or breach of this Agreement.   undersigned will execute and additional documents necessary to ensure the validity or enforcement of this Agreement. All authority herein conferred or undersigned.   obligations under this Agreement if (i) the Company notifies the Underwriter that it does not intend to proceed with the Offering, (ii) the Purchase Agreement does not become effective, or if the Purchase Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, or (iii) the Offering is not completed by May 31, 2014.   The undersigned understands that the Underwriter are entering into the Purchase Agreement and proceeding with the Offering in reliance upon this Agreement.   of the State of New York.   [remainder of page left blank intentionally – signature page follows]   Placement Agency Agreement   Exhibit B-4     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)       Exhibit B-5     Exhibit C   Form of Agent Warrants [See Attached]             Placement Agency Agreement   Exhibit C-1     WARRANT NEITHER THE SECURITIES REPRESENTED HEREBY NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF STATES.  THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.  UNLESS SOLD PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.   MAGNEGAS CORPORATION   WARRANT     Warrant No. _____  Original Issue Date:[_________], 2014                                                                                                                    MAGNEGAS CORPORATION a Delaware corporation (the “Company”), hereby certifies that, for value received, Northland Securities, Inc. or its registered assigns (the “Holder”), is entitled to purchase from the Company up to a total of _______ shares of Common Stock (each such share, a “Warrant Share” and all such shares, the “Warrant Shares”), at any time and from time to time from and after the Original Issue Date and through and including the date that is five years after the date of the final prospectus (the “Expiration Date”) relating to a public offering (the “Offering”) of Common Stock by the Company and certain of its stockholders, and subject to the following terms and conditions:   1.           Definitions. As used in this Warrant, the following terms shall have the respective definitions set forth in this Section 1.  Capitalized terms that are used and not defined in this Warrant that are defined in the Purchase Agreement (as defined below) shall have the respective definitions set forth in the Purchase Agreement.   “Closing Price” means, for any date of determination, the price determined by the first of the following clauses that applies: (i) if the Common Stock is then listed or quoted on a Trading Market, the closing bid price per share of the Common Stock for such date (or the nearest preceding date) on such market; (ii) if prices for the Common Stock are then quoted on the OTC Bulletin Board, the closing bid price per share of the Common Stock for such date (or the nearest preceding date) so quoted; (iii) if prices for the Common Stock are then reported in the “Pink Sheets” published by the National Quotation Bureau Incorporated (or a similar organization or agency succeeding to its functions of reported; or (iv) in all other cases, the fair market value of a share of Common Stock as determined by an independent qualified appraiser selected in good faith and paid for by the Company.   share, and any securities into which such common stock may hereafter be reclassified.   “Exercise Price” means $2.15, subject to adjustment in accordance with Section 9.   Placement Agency Agreement   Exhibit C-2     “Fundamental Transaction” means any of the following: (i) the Company effects any merger or consolidation of the Company with or into another person, (ii) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions, (iii) any tender offer or exchange offer (whether by the Company or another person) is completed pursuant to which holders of Common Stock are permitted to tender or exchange their shares for other securities, cash or property, or (iv) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant securities, cash or property.   “Original Issue Date” means the Original Issue Date first set forth on the first page of this Warrant or its predecessor instrument.   “Purchase Agreement” means the Purchase Agreement, dated March 24, 2014, to which the Company and the original Holder are parties.   “Trading Day” means (i) a day on which the Common Stock is traded on a Trading Market (other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading Market (other than the OTC Bulletin Board), a day on which the Common Stock is traded in the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock is not quoted on any Trading Market, a day on which the Common Stock is quoted in the over-the-counter market as reported by the National Quotation Bureau Incorporated (or any similar organization or agency succeeding to its functions of reporting prices); provided, that in the event that the Common Stock is not listed or quoted as set forth in clauses (i), (ii) and (iii) hereof, then Trading Day shall mean any day, other than a Saturday or Sunday and other than a day that banks in the State of New York are generally authorized or required by applicable law to be closed.   “Trading Market” means whichever of the New York Stock Exchange, NYSE AMEX, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or the OTC Bulletin Board on which the Common Stock is listed or quoted for trading on the date in question.   2.           Registration of Warrant.  The Company shall register this Warrant Register”), in the name of the record Holder hereof from time to time. The   3.           Registration of Transfers.  The Company shall register the transfer of any portion of this Warrant in the Warrant Register, upon surrender of this Warrant, with the Form of Assignment attached hereto duly completed and signed, to the Company at its address specified herein. Upon any such registration or transfer, a new Warrant to purchase Common Stock, in substantially the form of this Warrant (any such new Warrant, a “New Warrant”), evidencing the portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations of a holder of a Warrant.   4.           Exercise and Duration of Warrants.   (a)           This Warrant shall be exercisable by the registered Holder in whole at any time and in part from time to time from the Original Issue Date through and including the Expiration Date. At 5:00 p.m., Eastern time on the Expiration Date, the portion of this Warrant not exercised prior thereto shall be and become void and of no value.  The Company may not call or redeem any portion of this Warrant without the prior written consent of the affected Holder.   Placement Agency Agreement   Exhibit C-3     (b)           Notwithstanding anything to the contrary contained herein, the number of Warrant Shares that may be acquired by the Holder upon any exercise of this Warrant (or otherwise in respect hereof) shall be limited to the extent necessary to ensure that, following such exercise (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its affiliates (as defined under Rule 144, “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 4.999% 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).  For such purposes, beneficial ownership shall be determined in accordance with Section thereunder.  This provision shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Section 9 of this Warrant.  By written notice to the Company, the Holder may waive the provisions of this Section 4(b) but any such waiver will not be effective until the 61st day after delivery of such notice, nor will any such waiver effect any other Holder.                   Notwithstanding anything to the contrary contained herein, the 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 9.999% 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).  For such purposes, beneficial Act and the rules and regulations promulgated thereunder.  This provision shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Section 9 of this Warrant.  This restriction may not be waived.   5.           Delivery of Warrant Shares.   (a)           To effect exercises hereunder, the Holder shall not be required to physically surrender this Warrant unless the aggregate Warrant Shares represented by this Warrant are being exercised. Upon delivery of the Exercise Notice (in the form attached hereto) to the Company (with the attached Warrant Shares Exercise Log) at its address for notice set forth herein and upon payment of the Exercise Price multiplied by the number of Warrant Shares that the Holder intends to purchase hereunder and the Company shall promptly (but in no event later than three Trading Days after the Date of Exercise (as defined herein)) issue and deliver to the Holder, a certificate for the Warrant Shares issuable upon such exercise, which, unless otherwise required by applicable law, shall be free of restrictive legends.  A “Date of Exercise” means the date on which the Holder shall have delivered to the Company: (i) the Exercise Notice (with the Warrant Exercise Log attached to it), appropriately completed and duly signed and (ii) if such Holder is not utilizing the cashless exercise provisions set forth in this Warrant, payment of the Exercise Price for the number of Warrant Shares so indicated by the Holder to be purchased.   (b)           If by the third Trading Day after a Date of Exercise the Company fails to deliver the required number of Warrant Shares in the manner required pursuant to Section 5(a), then the Holder will have the right to rescind such exercise.   Placement Agency Agreement   Exhibit C-4     (c)           If by the third Trading Day after a Date of Exercise the Company pursuant to Section 5(a), and if after such third Trading Day and prior to the receipt of such Warrant Shares, the Holder purchases (in an open market sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (1) pay in cash to the Holder the amount by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue by (B) the closing bid price of the Common Stock at the time of the obligation giving rise to such purchase obligation and (2) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In.   (d)           The Company’s obligations to issue and deliver Warrant Shares in person or any action to enforce the same, or any setoff, counterclaim, Holder or any other person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other person, and irrespective of Company to the Holder in connection with the issuance of Warrant Shares. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Warrant Shares upon exercise of the Warrant as required pursuant to the terms hereof.   6.           Charges, Taxes and Expenses.  Issuance and delivery of Warrant Shares upon exercise of this Warrant shall be made without charge to the Holder for any issue or transfer tax, withholding tax, transfer agent fee or other incidental tax or expense in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the registration of any certificates for Warrant Shares or Warrants in a name other than that of the Holder. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.   7.           Replacement of Warrant.  If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary and reasonable indemnity (which shall not include a surety bond), if requested. Applicants for a New Warrant under such circumstances shall also comply with such other reasonable regulations and procedures and pay such other reasonable third-party costs as the Company may prescribe. If a New Warrant is requested as a result of a mutilation of this Warrant, then the Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the Company’s obligation to issue the New Warrant.   8.           Reservation of Warrant Shares.  The Company covenants that it will at all times reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, the number of Warrant Shares which are then issuable and deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other contingent purchase rights of Persons other than the Holder (taking into account the adjustments and restrictions of Section 9). The Company covenants that all Warrant Shares so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable.   Placement Agency Agreement   Exhibit C-5     9.           Certain Adjustments.  The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 9.   (a)           Stock Dividends and Splits.  If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be adjusted to equal the product obtained by multiplying the then-current Exercise Price 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. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.   (b)           Fundamental Transactions.  If, at any time while this Warrant is outstanding there is a Fundamental Transaction, then the Holder shall have the right thereafter to receive, upon exercise of this Warrant, the same amount and prior to such Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon exercise in full of this Warrant (the “Alternate Consideration”). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as it receives upon any exercise of this Warrant following such Fundamental Transaction. At the Holder’s option and request, any successor to the Company or surviving entity in such Fundamental Transaction shall, either (1) issue to the Holder a new warrant substantially in the form of this Warrant and consistent with the foregoing provisions and evidencing the Holder’s right to purchase the Alternate Consideration for the aggregate Exercise Price upon exercise thereof, or (2) purchase the Warrant from the Holder for a purchase price, payable in cash within five Trading Days after such request (or, if later, on the effective date of the Fundamental Transaction), equal to the Black Scholes value of the remaining unexercised portion of this Warrant on the date of such request. The terms of any agreement pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this paragraph (b) and insuring that the Warrant (or any such replacement security) will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction.   (c)           Number of Warrant Shares.  Simultaneously with any adjustment to the Exercise Price pursuant to this Section 9, the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.   (d)           Calculations. All calculations under this Section 9 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.   Placement Agency Agreement   Exhibit C-6     pursuant to this Section 9, the Company at its expense will promptly compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer agent.   10.          Payment of Exercise Price. The Holder may pay the Exercise Price in one of the following manners:   (a)           Cash Exercise.  The Holder may deliver immediately available funds; or   (b)           Cashless Exercise.  The Holder may notify the Company in an Exercise Notice of its election to utilize a cashless exercise, in which event the Company shall issue to the Holder the number of Warrant Shares determined as follows:   X = Y [(A-B)/A]   where:   X = the number of Warrant Shares to be issued to the Holder.   Y = the number of Warrant Shares with respect to which this Warrant is being exercised.   A = the average of the Closing Prices for the five Trading Days immediately prior to (but not including) the Exercise Date.   B = the Exercise Price.   For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.   11.           No Fractional Shares. No fractional shares of Warrant Shares will be issued in connection with any exercise of this Warrant. In lieu of any fractional shares which would, otherwise be issuable, the Company shall pay cash equal to the product of such fraction multiplied by the Closing Price of one Warrant Share on the date of exercise.   12.           Notices.  Any and all notices or other communications or deliveries hereunder (including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given and effective if provided pursuant to the Purchase Agreement. In case any time:  (1) the Company shall declare any cash dividend on its capital stock; (2) the Company shall pay any dividend payable in stock upon its capital stock or make any distribution to the holders of its capital stock; (3) the Company shall offer for subscription pro rata to the holders of its capital stock any additional shares of stock of any class or other rights; (4) there shall be any capital reorganization, or reclassification of the capital stock of the Company, or consolidation or merger of the Company with, or sale of all or substantially all of its assets to, another corporation; or (5) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company; then, in any one or more of said cases, the Company shall give prompt written notice to the Holder. Such notice shall also specify the date as of which the holders of capital stock of record shall participate in such dividend, distribution or subscription rights, or shall be entitled to exchange their capital stock for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding up, or conversion or redemption, as the case may be.  Such written notice shall be given at least 20 days prior to the action in question and not less than 20 days prior to the record date or the date on which the Company’s transfer books are closed in respect thereto.   Placement Agency Agreement   Exhibit C-7       13.           Lock Up.  In accordance with FINRA Rule 5110(g), this Warrant shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of this Warrant or the Warrant Shares, by any person for a period of 180 days immediately following the date of effectiveness or commencement of sales of the Offering, except as provided in paragraph (g)(2) of FINRA Rule 5110.   14.           Miscellaneous.   (a)           This Warrant shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any person other than the Company and the Holder any legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in writing signed by the Company and the Holder and their successors and assigns.   (b)           All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.   (c)           The headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.   (d)           In case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Warrant.   (e)           Prior to exercise of this Warrant, the Holder hereof shall not, by reason of by being a Holder, be entitled to any rights of a stockholder with respect to the Warrant Shares.   [Remainder of page intentionally left blank, signature page follows]   Placement Agency Agreement   Exhibit C-8   In witness whereof, the Company has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.     MAGNEGAS CORPORATION             By:       Name:       Its:       Accepted and agreed:   NORTHLAND SECURITIES, INC.   MAGNEGAS CORPORATION         By:     Name:     Its:       Placement Agency Agreement   Exhibit C-9   EXERCISE NOTICE            The undersigned Holder hereby irrevocably elects to purchase   shares of Common Stock pursuant to the attached Warrant.  Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Warrant.   (1) The undersigned Holder hereby exercises its right to purchase   Warrant Shares pursuant to the Warrant.   (2) The Holder intends that payment of the Exercise Price shall be made as (check one):                        “Cash Exercise” under Section 10                    “Cashless Exercise” under Section 10   (3) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $____________ to the Company in accordance with the terms of the Warrant.   (4) Pursuant to this Exercise Notice, the Company shall deliver to the Holder   Warrant Shares in accordance with the terms of the Warrant.     Dated ______________ __, _____  Name of Holder:           (Print)                     By:       Its:       (Signature must conform in all respects to name of holder as specified on the face of the Warrant)     Placement Agency Agreement   Exhibit C-10     Warrant Shares Exercise Log Date Number of Warrant Shares Available to be Exercised Number of Warrant Shares Exercised Number of Warrant Shares Remaining to be Exercised         Placement Agency Agreement   Exhibit C-11     FORM OF ASSIGNMENT   [To be completed and signed only upon transfer of Warrant]   the right represented by the attached Warrant to purchase   shares of Common Stock to which such Warrant relates and appoints   attorney to transfer said right on the books of the Company with full power of substitution in the premises. Dated: __________ __, _______                   Address of Transferee                         Note: Address for Delivery may not be a P.O. box and must be a physical address where stock certificates may be delivered in connection with this purchase or any future stock issued through splits, warrant conversions or other circumstances. The delivery address may be a personal residence, or a broker dealer where the certificate would be deposited   Attest: __________________________________     Exhibit C-12 

    ADVISORY AGREEMENT   THIS AGREEMENT, made as of April 30, 2007, among Morgan Stanley Managed Futures Altis I, LLC, a Delaware limited liability company (the “Trading Company”), Demeter Management Corporation, a Delaware corporation (the “Trading Manager”), and Altis Partners ( Jersey) Limited, an entity formed in Jersey (the “Trading Advisor”).     WHEREAS, the Trading Company has been organized pursuant to a Certificate of Formation filed with Secretary of State of the State of Delaware on March 26, 2007 (the “Certificate of Formation”) and an operating agreement (the “Operating Agreement”) to, among other things, directly or indirectly through a commodity trading advisor, trade, buy, sell, spread, or otherwise acquire, hold, or dispose of commodities (including, but not limited to, foreign currencies, mortgage-backed securities, money market instruments, financial instruments, and any other securities or items which are now, or may hereafter be, the subject of futures contract trading), domestic and foreign commodity futures contracts, forward contracts, foreign exchange commitments, options on physical commodities and on futures contracts, spot (cash) commodities and currencies, exchange of futures contracts for physicals transactions, exchange of physicals for futures contracts transactions, and any rights pertaining thereto, whether traded on an organized exchange or otherwise (hereinafter referred to collectively as “futures interests;” provided, however, such definition shall exclude securities futures products as defined by the Commodity Futures Trading Commission (“CFTC”), options in securities futures and options in equities) and securities (such as United States Treasury securities) approved by the CFTC for investment of customer funds and other securities on a limited basis, and to engage in all activities incident thereto;   WHEREAS, the Trading Company is a commodity pool operated by the Trading Manager in which other commodity pool investment vehicles sponsored and/or managed by the Trading Manager and/or its affiliates will invest (each such investment vehicle, a “Member,” and collectively, the “Members”);   WHEREAS, the principals of the Trading Advisor have extensive experience trading in futures interests and the Trading Advisor is willing to provide the services and undertake the obligations as set forth herein;   WHEREAS, the Trading Company and the Trading Manager each desires the Trading Advisor to act as a trading advisor for the Trading Company and to make investment decisions with respect to futures interests for the Trading Company and the Trading Advisor desires so to act; and   WHEREAS, the Trading Company, the Trading Manager and the Trading Advisor wish to enter into this Agreement which, among other things, sets forth certain terms and conditions upon which the Trading Advisor will conduct the Trading Company’s futures interest trading.   NOW, THEREFORE, the parties hereto hereby agree as follows:         1.   Undertakings in Connection with the Continuing Offering of Units.   (a) The Trading Advisor agrees with respect to the continuing offering of interests (“Units”) in the Members: (i) to make all disclosures regarding itself, its principals and affiliates, its trading performance, its trading systems, methods and strategies (subject to the need, in the reasonable discretion of the Trading Advisor, to preserve the secrecy of Proprietary Information (as defined in Section 1(c) hereof) concerning such systems, methods and strategies), any client accounts over which it has discretionary trading authority (other than the names of or identifying information with respect to any such clients), and otherwise, as the Members may reasonably require (x) in connection with any Member’s offering materials (collectively, the “Offering Memoranda”) as required by Rule 4.21 of the regulations under the Commodity Exchange Act (the “CEAct”), including in connection with any amendments or supplements thereto, or (y) to comply with any other applicable law or rule or regulation, including those of the CFTC, the National Futures Association (the “NFA”) or any other regulatory or self-regulatory body, exchange, or board with jurisdiction over its members (or to comply with the reasonable request of the aforementioned organizations); and (ii) to otherwise cooperate with the Trading Company, the Trading Manager and the Members by providing information regarding the Trading Advisor in connection with the preparation of the Offering Memoranda, including any amendments or supplements thereto, as part of making application for registration of the Units under the securities or blue sky laws of any jurisdictions, including foreign jurisdictions, as the Members may deem appropriate; provided that all such disclosures are subject to the need, in the reasonable discretion of the Trading Advisor, to preserve the secrecy of Proprietary Information concerning its clients, systems methods and strategies. As used herein, unless otherwise provided, the term “principal” shall have the meaning as defined in Rule 4.10(e) of the CFTC’s regulations and the term “affiliate” shall mean an individual or entity that directly or indirectly controls, is controlled by, or is under common control with, such party.   (b) If the Trading Advisor becomes aware of any materially untrue or misleading statement or omission regarding itself or any of its principals or affiliates in all information provided by Trading Advisor to Trading Company or Trading Manager (the “Disclosure Information”), or of the occurrence of any event or change in circumstances which would result in there being any materially untrue or misleading statement or omission in the Disclosure Information regarding itself or any of its principals or affiliates, the Trading Advisor shall promptly notify the Trading Manager and shall cooperate with the Trading Manager in the preparation of any necessary amendments or supplements to the Offering Memoranda. Neither the Trading Advisor nor any of its principals, or affiliates, or any stockholders, officers, directors, or employees shall distribute the Offering Memoranda or selling literature or shall engage in any selling activities whatsoever in connection with the continuing offering of Units except as may be specifically approved by the Trading Manager and agreed to by the Trading Advisor.   (c) For purposes of this Agreement, and notwithstanding any of the provisions hereof, all non-public information relating to the Trading Advisor including, but not limited to, records, whether original, duplicated, computerized, handwritten, or in any other form, and information contained therein, business and/or marketing and/or sales plans and proposals, names of past and current clients, names of past, current and prospective contacts, trading methodologies, systems, strategies and programs, trading advice, trading instructions, results of proprietary accounts, training materials, research data bases, portfolios, and computer software, and all written and oral information, furnished by the Trading Advisor to the Trading Company, the Trading Manager, the Members and/or their officers, directors, employees, agents (including, but not limited to, attorneys, accountants, consultants, and financial advisors) or controlling persons (each a “Recipient”), regardless of the manner in which it is furnished, together with any   2           analysis, compilations, studies or other documents or records which are prepared by a Recipient of such information and which contain or are generated from such information, regardless of whether explicitly identified as confidential, with the exception of information which (i) is or becomes generally available to the public other than as a result of acts by the Recipient in violation of this Agreement, (ii) is in the possession of the Recipient prior to its disclosure pursuant to the terms hereof, (iii) is or becomes available to the Recipient from a source that is not bound by a confidentiality agreement with regard to such information or by any other legal obligation of confidentiality prohibiting such disclosure, or (iv) that is independently developed by the Recipient without use of the confidential information described in this Section 1(c), are and shall be confidential information and/or trade secrets and the exclusive property of the Trading Advisor (“Confidential Information” and/or “Proprietary Information”).   (d) The Trading Company and the Trading Manager each warrants and agrees that they and their respective officers, directors, members, equity holders, employees and agents (including for purposes of this Agreement, but not limited to, attorneys, accountants, consultants, and financial advisors) will protect and preserve the Confidential Information and will disclose Confidential Information or otherwise make Confidential Information available only to the Trading Company’s or the Trading Manager’s officers, directors, members, equity holders, employees and agents (including for purposes of this Agreement, but not limited to, attorneys, accountants, consultants, and financial advisors), who need to know the Confidential Information (or any part of it) for the purpose of satisfying their fiduciary, legal, reporting, filing or other obligations hereunder or to monitor performance in the account during the term of this Agreement or thereafter, or to the Trading Company, Trading Manager or a Recipient, as the case may be, is required to disclose such Confidential Information due to a fiduciary obligation or legal or regulatory request. Additionally, the Trading Company and the Trading Manager each warrants and agrees that it and any Recipient will use the Confidential Information solely for the purpose of satisfying the Trading Company’s or the Trading Manager’s obligations under this Agreement and not in a manner which violates the terms of this Agreement.   2.   Duties of the Trading Advisor.   (a) Upon the commencement of trading operations on or about July 1, 2007 by the Trading Advisor on behalf of  the Trading Company, the Trading Advisor hereby agrees to act as a Trading Advisor for the Trading Company and, as such, shall have authority and responsibility for directing the investment and reinvestment of the Trading Company’s assets, which shall consist of the Trading Company’s Net Assets (as defined in Section 5(c) hereof) plus “notional” funds, if any, as specified in writing by the Trading Manager and consented to by the Trading Advisor (the “Assets”), on the terms and conditions and in accordance with the prohibitions and the trading policies set forth in Exhibit A to this Agreement as amended from time to time and provided in writing to the Trading Advisor by the Trading Manager (the “Trading Policies”); provided, however, that the Trading Manager may override the instructions of the Trading Advisor without notice to the Trading Advisor to the extent necessary (i) to comply with the Trading Policies and with applicable speculative position limits, (ii) to fund any distributions or redemptions, (iii) to pay the Trading Company’s expenses, (iv) to the extent the Trading Manager believes   3       doing so is necessary for the protection of the Trading Company, (v) to terminate the futures interest trading of the Trading Company with the Trading Advisor, or (vi) to comply with any applicable law or regulation. The Trading Manager agrees not to override any such instructions for the reasons specified in clauses (ii) or (iii) of the preceding sentence unless the Trading Advisor fails to comply with a request of the Trading Manager to make the necessary amount of funds available to the Trading Company within two trading days of such request.  The Trading Advisor shall not be liable for the consequences of any decision by the Trading Manager to override instructions of the Trading Advisor, except to the extent that such consequences result from a material breach of this Agreement by the Trading Advisor or the Trading Advisor fails to comply with the Trading Manager’s decision to override an instruction.   (b) The Trading Advisor shall:   (i) Exercise good faith and due care in trading futures interests for the account of the Trading Company in accordance with the prohibitions and Trading Policies, and the trading systems, methods, and strategies of the Trading Advisor as disclosed in the Disclosure Information, with such changes and additions to such trading systems, methods or strategies as the Trading Advisor, from time to time, incorporates into its trading approach for accounts the size of the Trading Company.   (ii) Provide the Trading Manager, within 45 days of the end of a calendar quarter, and within 45 days of a separate request which the Trading Manager may make from time to time, with information comparing the performance of the Trading Company’s account and the performance of all other client accounts (“Other Accounts”) directed by the Trading Advisor using the trading systems used by the Trading Advisor on behalf of the Trading Company over a specified period of time for the purpose of confirming that the Trading Company has been treated equitably compared to such Other Accounts.  In providing such information, the Trading Advisor may take such steps as are necessary to assure the confidentiality of the Trading Advisor’s clients’ identities. The Trading Advisor shall, upon the Trading Manager’s request, consult with the Trading Manager concerning any discrepancies between the performance of such Other Accounts and the Trading Company’s account. The Trading Advisor shall promptly inform the Trading Manager in writing of any material discrepancies of which the Trading Advisor is aware. The Trading Manager acknowledges that the following differences in accounts may cause divergent trading results:  different trading strategies, methods or degrees of leverage, different trading policies, accounts experiencing differing inflows or outflows of equity, different risk profiles, accounts which commence trading at different times and accounts which have different portfolios or different fiscal years.   (iii) Inform the Trading Manager when the Trading Advisor’s open positions maintained by the Trading Advisor exceed the Trading Advisor’s applicable speculative position limits 4       (iv) Upon request of the Trading Manager, promptly provide the Trading Manager with all information concerning the Trading Advisor and its activities reasonably requested by the Trading Manager (including, without limitation, information relating to changes in control, key personnel, trading approach, or financial condition).   (c) All purchases and sales of futures interests pursuant to this Agreement shall be for the account, and at the risk, of the Trading Company and not for the account, or at the risk of the Trading Advisor or any of its affiliates or each of their principals, stockholders, directors, officers, or employees, or any other person, if any, who controls the Trading Advisor. All brokerage commissions and related transaction fees arising from such trading by the Trading Advisor shall be for the account of the Trading Company.   (d) Subject to Section 7(a) hereof, the Trading Advisor shall assume financial responsibility for any errors committed or caused by it in transmitting orders for the purchase or sale of futures interests for the Trading Company’s account including payment to the Commodity Brokers (as described in Section 4 hereof) of the floor brokerage commissions, exchange, NFA fees, and other transaction charges and give-up charges incurred by the Commodity Broker on such trades but only for the amount of the Commodity Brokers’ out-of-pocket costs in respect thereof. The Trading Advisor’s errors shall include, but not be limited to, inputting improper trading signals or communicating incorrect orders to the Commodity Brokers. The Trading Advisor shall have an affirmative obligation to promptly notify the Trading Manager upon discovery of its own errors with respect to the account, and the Trading Advisor shall use its best efforts to identify and promptly notify the Trading Manager of any order or trade which the Trading Advisor reasonably believes was not executed in accordance with its instructions to any Commodity Broker or such other commodity broker utilized to execute orders for the Trading Company.   (e) Prior to the commencement of trading by the Trading Company, the Trading Manager, on behalf of the Trading Company, shall deliver to the Trading Advisor a trading authorization appointing the Trading Advisor the Trading Company’s attorney-in-fact for such purpose (a form of which is attached hereto as Exhibit B).   (f) In performing services to the Trading Company, the Trading Advisor shall utilize its Global Futures Portfolio (the “Trading Program”), as disclosed in the Disclosure Information, and as modified from time to time. The Trading Advisor shall give the Trading Manager prior written notice of any change in the Trading Program that the Trading Advisor considers to be material (and shall not effect such change on behalf of the Trading Company without the Trading Manager’s consent), including any additional futures interests to be traded by the Trading Advisor not already listed on Exhibit C.  Changes in the futures interests traded, provided that such futures interests are listed on Exhibit C, shall not be deemed a modification of the Trading Program.   3.   Trading Advisor as an Independent Contractor.   For all purposes of this Agreement, the Trading Advisor shall be deemed to be an independent contractor and shall, unless otherwise expressly provided herein or authorized, have no authority to act for or represent the Trading Company or its Members in any way or otherwise be deemed an agent of the Trading Company or its Members.  Nothing contained herein shall be deemed to require the Trading Company to take any action contrary to the Operating Agreement or the Certificate of Formation of the Trading Company as from time to time in effect, or any applicable law or rule or regulation of any regulatory or self-regulatory body, exchange, or board. Nothing herein contained shall constitute the Trading Advisor, the Trading Manager, or the Members, as members of any partnership, joint venture, association, syndicate or other entity, or be deemed to confer on any of them any express, implied, or apparent authority to incur any obligation or liability on behalf of any other. It is expressly agreed that the Trading Advisor is neither a promoter, sponsor, or issuer with respect to the Trading Company or its Members, nor does the Trading Advisor have any authority or responsibility with respect to the offer, sale or issuance of Units.   5       4.   Commodity Broker.   The Trading Advisor shall effect all transactions in futures interests for the Trading Company through the Trading Company’s separate account maintained with such commodity broker or brokers as the Trading Manager shall direct and appoint from time to time. Morgan Stanley & Co., Incorporated (“MS & Co.”), Morgan Stanley & Co. International Limited, and Morgan Stanley Capital Group Inc. (“MSCG” and collectively, the “Commodity Brokers”) may act as the clearing commodity brokers for the Trading Company, and MS & Co. and its affiliates may act as foreign exchange forward contract counterparty for the Trading Company.  MSCG and its affiliates may act as an options on foreign exchange forward contract counterparty for the Trading Company.  The Trading Manager shall provide the Trading Advisor with copies of brokerage statements.   Notwithstanding the foregoing, the Trading Advisor may execute trades through floor brokers other than those employed by MS & Co. and its affiliates so long as arrangements (including executed give-up agreements) are made for such floor brokers to “give-up” or transfer the positions to MS & Co. in conformity with the Trading Policies set forth in Exhibit A attached hereto.   5.   Fees.   (a) For the services to be rendered to the Trading Company by the Trading Advisor under this Agreement:   (i) The Trading Company shall pay the Trading Advisor a monthly management fee equal to 1/12 of 1.75% (a 1.75% annual rate) of the Assets (as defined in Section 5(c) hereof) as of the first day of each month (the “Management Fee”).  The Management Fee is payable in arrears within 30 Business Days of the end of the month for which it was calculated.  For purposes of this Agreement, “Business Day” shall mean any day which the securities markets are open in the United States.   (ii) The Trading Company shall pay the Trading Advisor an incentive fee equal to 20% of the New Trading Profit (as defined in Section 5(d) hereof) in each capital account of the Members in the Trading Company (the “Capital Account”) that shall accrue monthly but is not payable until the end of each calendar quarter (the “Incentive Fee”).  The initial incentive period will commence on the date of the Trading Company’s initial closing for each Capital Account and shall end on the last day of the first full calendar quarter after such initial closing occurs.  The Incentive Fee is payable within 30 Business Days of the end of the calendar quarter for which it was calculated.   6         (b) If this Agreement is terminated on a date other than the last day of a calendar quarter, the Incentive Fee shall be determined as if such date were the end of a calendar quarter. If this Agreement is terminated on a date other than the end of a month, the Management Fee described above shall be determined as if such date were the end of a month, but such fee shall be prorated based on the ratio of the number of trading days in the month through the date of termination to the total number of calendar days in the month. If, during any month after the Trading Company commences trading operations (including the month in which the Trading Company commences such operations), the Trading Company does not conduct business operations, or suspends trading for the account of the Trading Company managed by the Trading Advisor, or, as a result of an act or material failure to act by the Trading Advisor, is otherwise unable to utilize the trading advice of the Trading Advisor on any of the calendar days of that month for any reason, the Management Fee shall be prorated based on the ratio of the number of calendar days in the month which the Trading Company account managed by the Trading Advisor engaged in trading operations or utilizes the trading advice of the Trading Advisor to the total number of calendar days in the month. The Management Fee payable to the Trading Advisor for the month in which the Trading Company begins to receive trading advice from the Trading Advisor pursuant to this Agreement shall be prorated based on the ratio of the number of calendar days in the month from the day the Trading Company begins to receive such trading advice to the total number of calendar days in the month. In the event that there is an increase or decrease in the Assets as of any day other than the first day of a month, the Trading Advisor shall be paid a pro rata Management Fee on such increase or decrease in the Assets for such month.   (c) The term “Net Assets” shall mean the total assets of the Trading Company (including, but not limited to, all cash and cash equivalents, accrued interest and amortization of original issue discount, and the market value (marked-to-market) of all open futures interest positions and other assets of the Trading Company) less all liabilities of the Trading Company determined in accordance with generally accepted accounting principles consistently applied under the accrual basis of accounting. Unless generally accepted accounting principles require otherwise, the market value of a futures or option contract traded on a United States exchange shall mean the settlement price on the exchange on which the particular futures or option contract shall be traded by the Trading Company on the day with respect to which the Net Assets are being determined; provided, however, that if a contract could not be liquidated on such day due to the operation of daily limits or other rules of the exchange on which that contract shall be traded or otherwise, the settlement price on the first subsequent day on which the contract could be  liquidated shall be the market value of such contract for such day, or if a contract could not be liquidated on such day due to the exchange being closed for an exchange holiday, the settlement price on the most recent preceding day on which the contract could have been liquidated shall be the market value of such contract for such day.  The market value of a forward contract or a futures or option contract traded on a foreign exchange or market shall mean its market value as determined by the Trading Manager on a basis consistently applied for each different variety of contract.   7       (d) The term “New Trading Profit” shall mean net futures interest trading profits (realized and unrealized) on the Assets in each Capital Account, decreased proportionally by the Trading Advisor’s monthly management fees, brokerage commissions, transaction costs and administrative fees.  Such trading profits and items of decrease shall be determined for each Capital Account from the end of the last calendar quarter in which an Incentive Fee was earned by the Trading Advisor or, if no Incentive Fee has been earned previously by the Trading Advisor with respect to a Capital Account, from the date that the Trading Advisor commenced managing the Assets in the Capital Account, to the end of the calendar quarter as of which such Incentive Fee calculation is being made. Extraordinary expenses do not reduce New Trading Profit. Interest income is not included in New Trading Profit. New Trading Profit shall be calculated before reduction for Incentive Fees paid or accrued so that the Trading Advisor does not have to earn back Incentive Fees.  Accrued Incentive Fees shall be paid to the Trading Advisor on those assets withdrawn from a Capital Account due to redemptions at the end of any month when such withdrawal of assets is made as if such month-end is the end of the calendar quarter.   (e) If any payment of Incentive Fees is made to the Trading Advisor on account of New Trading Profit earned by the Trading Advisor for a Capital Account and the Trading Advisor thereafter fails to earn New Trading Profit or experiences losses for any subsequent incentive period, the Trading Advisor shall be entitled to retain such amounts of Incentive Fees previously paid to the Trading Advisor in respect of such New Trading Profit.   (f) No Incentive Fees shall be payable to the Trading Advisor until the Trading Advisor has earned New Trading Profit; provided, however, that if the Assets of a Capital Account are reduced because of redemptions that occur at the end of, and/or subsequent to, a calendar quarter in which the Trading Advisor experiences a futures interest trading loss for the Trading Company, the trading loss that must be recovered before the Trading Advisor will be deemed to experience New Trading Profit in a subsequent calendar quarter will be equal to the amount determined by (x) dividing the Assets of each Capital Account after such decrease by the Assets in such Capital Account immediately before such decrease and (y) multiplying that fraction by the amount of the unrecovered futures interest trading loss prior to such decrease. In the event that the Trading Advisor experiences a trading loss for a Capital Account in more than one calendar quarter without the Trading Company paying an intervening Incentive Fee and Assets for a Capital Account are reduced in more than one such calendar quarter because of redemptions, then the trading loss for each such calendar quarter shall be adjusted in accordance with the formula described above and such reduced amount of futures interest trading loss shall be carried forward and used to offset subsequent futures interest trading profits.   6.   Term   (a) This Agreement shall continue in effect for a period of one year from the date the Agreement was entered into unless otherwise terminated as set forth in this Section 6. The Trading Advisor may terminate this Agreement at the end of such one-year period by providing prior written notice of termination to the Trading Company at least sixty days prior to the expiration of such one-year period. If the Agreement is not terminated upon the expiration of such one-year period, this Agreement shall automatically renew for an additional one-year period and shall continue to renew for additional one-year periods until this Agreement is otherwise terminated, as provided for herein.  This Agreement shall automatically terminate if the Trading Company is dissolved.   8         (b) The Trading Company and Trading Manager each shall have the right to terminate this Agreement in its discretion (i) at any month end upon five days’ prior written notice to the Trading Advisor, or (ii) at any time upon prior written notice to the Trading Advisor upon the occurrence of any of the following events: (A) if any person described as a “principal” of the Trading Advisor in the Offering Memoranda ceases for any reason to be an active “principal” of the Trading Advisor; (B) if the Trading Advisor becomes bankrupt or insolvent; (C) if the Trading Advisor is unable to use its trading systems or methods as in effect on the date hereof and as modified in the future for the benefit of the Trading Company; (D) if the registration, as a commodity trading advisor, of the Trading Advisor with the CFTC or its membership in the NFA is revoked, suspended, terminated, or not renewed, or limited or qualified in any respect; (E) except as provided in Section 11 hereof, if the Trading Advisor merges or consolidates with, or sells or otherwise transfers its advisory business, or all or a substantial portion of its assets, any portion of its futures interest trading systems or methods, or its goodwill to, any individual or entity; (F) if, at any time, the Trading Advisor violates any Trading Policy or administrative policy, except with the prior express written consent of the Trading Manager; (G) if the Trading Advisor fails in a material manner to perform any of its obligations under this Agreement; or (H) if the Trading Advisor merges, consolidates or sells a substantial portion of its assets pursuant to Section 11 of this Agreement.   (c) The Trading Advisor may terminate this Agreement at any time, upon thirty days’ prior written notice to the Trading Company and Trading Manager, in the event: (A) that the Trading Manager imposes additional trading limitation(s) in the form of one or more Trading Policies or administrative policies that the Trading Advisor does not consent to, such consent not to be unreasonably withheld; (B) the Trading Manager objects to the Trading Advisor implementing a proposed material change to the Trading Program and the Trading Advisor certifies to the Trading Manager in writing that it believes such change is in the best interests of the Trading Company; (C) the Trading Manager or the Trading Company materially breaches this Agreement and does not correct the breach within ten days of receipt of a written notice of such breach from the Trading Advisor; (D) the Assets fall below $5,000,000 (after adding back trading losses) at any time; (E) the Trading Company becomes bankrupt or insolvent, or (F) the registration of the Trading Manager with the CFTC as a commodity pool operator or its membership in the NFA is revoked, suspended, terminated or not renewed, or limited or qualified in any respect.  If the Trading Manager or Trading Company merges, consolidates or sells a substantial portion of its assets pursuant to Section 11 of this Agreement, the Trading Advisor may terminate this Agreement upon prior written notice to the Trading Manager and Trading Company.   (d) Except as otherwise provided in this Agreement, any termination of this Agreement in accordance with this Section 6 shall be without penalty or liability to any party, on account of such termination.   (e) The indemnities set forth in Section 7 hereof shall survive any termination of this Agreement.   9         7.   Standard of Liability: Indemnifications.   (a) Limitation of Trading Advisor Liability. In respect of the Trading Advisor’s role in the futures interests trading of the Trading Company, the Trading Advisor shall not be liable to the Trading Company or the Trading Manager or their partners, directors, officers, principals, managers, members, shareholders, employees, controlling persons or successors and assigns except that the Trading Advisor shall be liable for acts or omissions that constitute a breach of this Agreement or a representation, warranty or covenant herein, misconduct or negligence, or are the result of the Trading Advisor not having acted in good faith and in the reasonable belief that such actions or omissions were in, or not opposed to, the best interests of the Trading Company.   (b) Trading Advisor Indemnity in Respect of Management Activities. The Trading Advisor shall indemnify, defend and hold harmless the Trading Company and the Trading Manager, their controlling persons, their affiliates and their respective directors, officers, principals, managers, members, shareholders, employees and controlling persons from and against any and all losses, claims, damages, liabilities (joint and several), costs, and expenses (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Advisor shall have approved such settlement) resulting from a demand, claim, lawsuit, action or proceeding (other than those incurred as a result of claims brought by or in the right of an indemnified party) relating to this Agreement (except as covered by paragraph (d) below); provided that a court of competent jurisdiction upon entry of a final judgment (or, if no final judgment is entered, by an opinion rendered by counsel who is approved by the Trading Company and the Trading Advisor, such approval not to be unreasonably withheld) to the effect that the action or inaction of such indemnified party that was the subject of the demand, claim, lawsuit, action, or proceeding did not constitute negligence, misconduct, or a breach of this Agreement or a representation, warranty or covenant of the Trading Company or the Trading Manager, their controlling persons, their affiliates and their respective directors, officers, shareholders, employees, and controlling persons and was done in good faith.   (c) Trading Company Indemnity in Respect of Management Activities.  The Trading Company shall indemnify, defend and hold harmless the Trading Advisor, its principals, managers, members, shareholders, employees and controlling persons, from and against any and all losses, claims, damages, liabilities (joint and several), costs and expenses (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Company shall have approved such settlement) resulting from a demand, claim, lawsuit, action or proceeding (other than those incurred as a result of claims brought by or in the right of an indemnified party) relating to this Agreement (except as covered by paragraph (e) below); provided that a court of competent jurisdiction upon entry of a final judgment finds (or, if no final judgment is entered, by an opinion rendered by counsel who is approved by the Trading Company and the Trading Advisor, such approval not to be unreasonably withheld) to the effect that the action or inaction of such indemnified party that was the subject of the demand, claim, lawsuit, action, or proceeding did not constitute negligence, misconduct, or a breach of this Agreement or a representation, warranty or covenant of the Trading Advisor, its controlling persons, its affiliates and directors, officers, shareholders, employees, and controlling persons and was done in good faith.   10         (d) Trading Advisor Indemnity in Respect of Sale of Units. The Trading Advisor shall indemnify, defend and hold harmless the Trading Company, the Trading Manager, any selling agent, their controlling persons and their affiliates and their respective directors, officers, principals, managers, members, shareholders, employees and controlling persons from and against any and all losses, claims, damages, liabilities, costs, and expenses, (joint and several), to which any indemnified person may become subject (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Advisor shall have approved such settlement, and in connection with any administrative proceedings), in respect of the offer or sale of Units, insofar as such losses, claims, damages, liabilities, costs, or expenses (or action in respect thereof) arise out of, or are based upon: (i) a breach by the Trading Advisor of any applicable laws or regulations or any representation, warranty or agreement in this Agreement; or (ii) any materially untrue statement or omission relating or with respect to the Trading Advisor, or any of its principals, or their operations, trading systems, methods or performance, which was made in the Offering Memoranda or any amendment or supplement thereto or any other sales literature and furnished by the Trading Advisor for inclusion therein.   (e)  Trading Company Indemnity in Respect of Sale of Units. The Trading Company shall indemnify, defend and hold harmless the Trading Advisor its controlling persons, their affiliates and their respective directors, officers, principals, managers, members shareholders, employees and controlling persons from and against any loss claim, damage, liability, cost, and expense, joint and several, provided that, solely in the case of a settlement, the Trading Company shall proceedings), in respect of the offer or sale of Units, unless such loss, claim, damage, liability, cost, or expense (or action in respect thereof) arises out of, or is based upon (i) a breach by the Trading Advisor of any applicable laws or regulations or any representation, warranty or agreement in this Agreement; or (ii) any materially untrue statement or omission relating or with respect to the Trading Advisor, or any of its principals or their operations, trading systems, methods or performance that was made in the Offering Memoranda or in any other sales literature and furnished by the Trading Advisor for inclusion therein.   (f) Subject to Section 7(a) hereof, the foregoing agreements of indemnity shall be in addition to, and shall in no respect limit or restrict, any other remedies which may be available to an indemnified person. 11       (g) Promptly after receipt by an indemnified person of notice of the commencement of any action, claim, or proceeding to which any of the indemnities may apply, the indemnified person will notify the indemnifying party in writing of the commencement thereof if a claim in respect thereof is to be made against the indemnifying party hereunder; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to the indemnified person hereunder, except where such omission has materially prejudiced the indemnifying party. In case any action, claim, or proceeding is brought against an indemnified person and the indemnified person notifies the indemnifying party of the commencement thereof as provided above, the indemnifying party will be entitled to participate therein and, to the extent that the indemnifying party desires, to assume the defense thereof with counsel selected by the indemnifying party and not unreasonably disapproved by the indemnified person. After notice from the indemnifying party to the indemnified person of the indemnifying party’s election so to assume the defense thereof as provided above, the indemnifying party will not be liable to the indemnified person under the indemnity provisions hereof for any legal and other expenses subsequently incurred by the indemnified person in connection with the defense thereof, other than reasonable costs of investigation.   Notwithstanding the preceding paragraph, if in any action, claim, or proceeding as to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, to the indemnifying party’s interests or that there may be legal defenses available to the indemnified person that are different from, in addition to, or inconsistent with the defenses available to the indemnifying party, the indemnified person may retain its own counsel in connection with such action, claim, or proceeding and will be indemnified (provided the indemnified person is so entitled) by the indemnifying party for any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding.   In no event will the indemnifying party be liable for the fees and expenses of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction arising out of the same general allegations. The indemnifying party will not be liable for any settlement of any action, claim, or proceeding effected without the indemnifying party’s express written consent, but if any action, claim, or proceeding, is settled with the indemnifying party’s express written consent, the indemnifying party will indemnify, defend, and hold harmless an indemnified person as provided in this Section 7.   8.   Right to Advise Others and Uniformity of Acts and Practices.   (a) The Trading Advisor is engaged in the business of advising clients as to the purchase and sale of futures interests. During the term of this Agreement, the Trading Advisor, its principals and affiliates, will be advising other clients (including affiliates and the stockholders, officers, directors, and employees of the Trading Advisor and its affiliates and their families) and trading for their own accounts. The Trading Advisor will use its best efforts to implement a fair and consistent allocation policy that seeks to ensure that all clients are treated equitably and positions allocated as nearly as possible in proportion to the assets available for trading of the accounts managed or controlled by the Trading Advisor.  Upon written request, the Trading Manager may request a copy of the Trading Advisor’s procedures regarding the equitable treatment of trades across accounts.  Such procedures shall be provided to the Trading Manager within 30 days of such request by the Trading Manager.  Except as otherwise set forth herein, the   12           Trading Advisor and its principals and affiliates agree to treat the Trading Company in a fiduciary capacity to the extent recognized by applicable law, but subject to that standard.  Under no circumstances shall the Trading Advisor by any act or omission knowingly or intentionally favor any account advised or managed by the Trading Advisor over the account of the Trading Company in any way or manner. Nothing contained in this Section 8(a) shall preclude the Trading Advisor from charging different management and/or incentive fees to its clients. Subject to the Trading Advisor’s obligations under applicable law, the Trading Advisor or any of its principals or affiliates shall be free to advise and manage accounts for other clients and shall be free to trade on the basis of the same trading systems, methods, or strategies employed by the Trading Advisor for the account of the Trading Company, or trading systems, methods, or strategies that are entirely independent of, or materially different from, those employed for the account of the Trading Company, and shall be free to compete for the same futures interests as the Trading Company or to take positions opposite to the Trading Company, where such actions do not knowingly or intentionally prefer any of such accounts over the account of the Trading Company on an overall basis.   (b) The Trading Advisor shall not be restricted as to the number or nature of its clients, except that: (i) so long as the Trading Advisor acts as a trading advisor for the Trading Company, neither the Trading Advisor nor any of its principals or affiliates shall knowingly hold any position or control any other account that would cause the Trading Company, the Trading Advisor, or the principals or affiliates of the Trading Advisor to be in violation of the CEAct or any regulations promulgated thereunder, any other applicable law, or any applicable rule or regulation of the CFTC or any other regulatory or self regulatory body, exchange, or board; and (ii) neither the Trading Advisor nor any of its principals or affiliates shall render futures interests trading advice to any other individual or entity or otherwise engage in activity that shall knowingly cause positions in futures interests to be attributed to the Trading Advisor under the rules or regulations of the CFTC or any other regulatory or self regulatory body, exchange, or board so as to require the significant modification of positions taken or intended for the account of the Trading Company; provided that the Trading Advisor may modify its trading systems, methods or strategies to accommodate the trading of additional funds or accounts.  If applicable speculative position limits are exceeded by the Trading Advisor in the opinion of (i) independent counsel (who shall be other than counsel to the Trading Company), (ii) the CFTC, or (iii) any other regulatory or self regulatory body, exchange, or board, the Trading Advisor and its principals and affiliates shall promptly liquidate positions in all of their accounts, including the Trading Company’s account, as to which positions are attributed to the Trading Advisor as nearly as possible in proportion to the accounts′ respective amounts available for trading (taking into account different degrees of leverage and “notional” equity) to the extent necessary to comply with the applicable position limits.   9.   Representations, Warranties, and Covenants of the Trading Advisor.   (a) Representations and Warranties of the Trading Advisor. The Trading Advisor represents and warrants to and agrees with the Trading Manager and the Trading Company as follows:   13         (i) It will exercise good faith and due care in implementing the Trading Program on behalf of the Trading Company or any other trading programs agreed to by the Trading Manager and the Trading Advisor.   (ii) The Trading Advisor shall follow and comply with, at all times, the Trading Policies.   (iii) The Trading Advisor shall trade the Assets pursuant to the Trading Program as agreed to by the Trading Manager and Trading Advisor.   (iv) The Trading Advisor is duly organized, validly existing and in good standing under the laws of the state of its organization and is qualified to do business as a foreign corporation or and is in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify would materially adversely affect the Trading Advisor’s ability to perform its duties under this Agreement. The Trading Advisor has full power and authority to perform its obligations under this Agreement. The only principals of the Trading Advisor are those set forth in the Offering Memoranda and disclosed in the Disclosure Information (the “Trading Advisor Principals”).   (v) All references to the Trading Advisor and the Trading Advisor Principals and trading systems, methods and performance in the Offering Memoranda are accurate and complete in all material respects. With respect to the Trading Advisor, the Trading Advisor Principals, and its trading systems, methods and performance:  (i) the Offering Memoranda contains all statements and information required to be included therein under the CEAct and the rules and regulations thereunder, and (ii) the Offering Memoranda do not contain, and will not during the term of this Agreement contain, any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements were made, not misleading. Except as otherwise disclosed in the Offering Memoranda, the actual performance of each discretionary account directed by the Trading Advisor or any principal or affiliate of the Trading Advisor over the past five  years and year-to-date is disclosed in the Offering Memoranda on either a composite or a stand alone basis. The information regarding the actual performance of such accounts set forth in the Offering Memoranda has been calculated and presented in accordance with the descriptions therein and is complete and accurate in all material respects.   (vi) This Agreement has been duly and validly authorized, executed and delivered on behalf of the Trading Advisor and is a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms.   (vii) Each of the Trading Advisor and the Trading Advisor Principals has all federal, state and foreign governmental, regulatory and exchange licenses and approvals and has effected all filings and registrations with federal, state and foreign governmental and regulatory agencies required to conduct its business and to act as described in the Offering Memoranda or required to perform its or his obligations under this Agreement. The Trading Advisor is registered as a commodity trading advisor under the CEAct and is a member of the NFA in such capacity.   14       (viii) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions contemplated herein and in the Offering Memoranda and the payment of the fees hereunder will not violate, or constitute a breach of, or default under, the certificate of incorporation or bylaws (or any other organizational documents) of the Trading Advisor or any agreement or instrument by which it is bound or of any order, rule, law or regulation binding on it of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over it.   (ix) Since the time of delivery of the relevant Disclosure Information, there has not been any material adverse change in the condition, financial or otherwise, business or prospects of the Trading Advisor or any Trading Advisor Principal.   (x) There have not been and there is not pending, or to the best of the Trading Advisor’s knowledge after due inquiry, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Trading Advisor or any Trading Advisor Principal is or was a party, or to which any of the assets of the Trading Advisor is or was subject and which resulted in or might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, business or prospects of the Trading Advisor.  None of the Trading Advisor or any Trading Advisor Principal has received any notice of an investigation by the NFA, CFTC or other administrative agency or self-regulatory body (whether United States or foreign) regarding noncompliance by the Trading Advisor or any of the Trading Advisor Principals with the CEAct or any other applicable law.   (xi) Neither the Trading Advisor nor any Trading Advisor Principal has received, or is entitled to receive, directly or indirectly, any commission, finder’s fee, similar fee, or rebate from any person in connection with the organization or operation of the Trading Company.   (xii) Participation by the Trading Advisor in accordance with the terms hereof and as described in the Offering Memoranda will not violate any provisions of the Investment Advisers Act of 1940, as amended.   (xiii) Neither the Trading Advisor nor any Trading Advisor Principal will use or distribute the Offering Memoranda or any selling literature or engage in any selling activities whatsoever in connection with the offering of the Units.   (xiv) The information in the Offering Memoranda about the Trading Advisor does not contain any misleading or untrue statements of a material fact or omit to state a material fact required to be stated therein to make the statements not misleading.   (xvi)           The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the foregoing representations or warranties inaccurate, the Trading Advisor shall promptly notify the Trading Manager and the Trading Company of the nature of such event.   15       (b) Covenants of the Trading Advisor.  The Trading Advisor covenants and agrees that:   (i) The Trading Advisor shall maintain all registrations and memberships necessary for the Trading Advisor to continue to act as described herein and to at all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the Trading Advisor’s ability to act as described herein.   (ii) The Trading Advisor shall inform the Trading Manager immediately as soon as the Trading Advisor or any Trading Advisor Principal becomes the subject of any investigation, claim or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting (or which may, with the passage of time, materially affect) the business of the Trading Advisor. The Trading Advisor shall also inform the Trading Manager immediately if the Trading Advisor or any of its officers becomes aware of any breach of this Agreement by the Trading Advisor.   (iii) The Trading Advisor agrees to cooperate by providing information regarding itself and its performance in the preparation of any amendments or supplements to the Offering Memoranda (subject to the limitation set forth in Section 1 hereof).   10.   Representations and Warranties of the Trading Company and the Trading Manager; Covenants of the Trading Manager.   (a) The Trading Company and the Trading Manager represent and warrant to the Trading Advisor, as follows:   (i) The Trading Company has provided to the Trading Advisor the Offering Memoranda in the form first issued. The Trading Company will ensure that the Members will not utilize any amendment or supplement to the Offering Memoranda unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has approved any description of the Trading Advisor contained therein.   (ii) Each Members’ organizational agreement provides for the subscription for and sale of the Units in the respective Member; all material actions required to be taken by each Member as a condition to the sale of its Units to qualified subscribers therefor has been, or prior to each closing described in the Member’s Confidential Private Placement Memorandum shall have been taken; and, upon payment of the consideration therefor specified in each accepted subscription agreement in such form as attached to the respective Member’s Confidential Private Placement Memorandum, the Units will constitute valid interests in the Member. Each Member is in material compliance with all laws, rules, regulations and orders of any governmental agency or self-regulatory organization applicable to the Member’s business and the offering, sale, issuance and distribution of its Units.   16         (iii) The Trading Company is a limited liability company duly formed pursuant to its Certificate of Formation, Operating Agreement and the Delaware Limited Liability Company Act and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to engage in the trading of futures interests and to engage in its other contemplated activities as described in the Offering Memoranda; the Trading Company is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Trading Company’s ability to perform its obligations hereunder.   (iv) The Trading Manager is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the Trading Manager’s ability to perform its obligations hereunder.   (v) The Trading Company and the Trading Manager have full power and authority under applicable law to conduct their business and to perform their respective obligations under this Agreement and as described in the Offering Memoranda.   (vi) As of the date hereof, the Offering Memoranda contain all statements and information required to be included therein by the CEAct or other applicable law and at all times subsequent thereto up to and including each closing, the Offering Memoranda will comply in all material respects with the requirements of the rules of the NFA, the CEAct or other applicable laws. The Offering Memoranda as of the initial closing (as described therein), date of issue, and at each closing will not contain any misleading or untrue statements of a material fact make the statements therein not misleading. Any supplemental sales literature, when read in conjunction with the Offering Memoranda, will not contain any untrue statements of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. This representation and warranty shall not, however, apply to any statement or omission in the Offering Memoranda or supplemental sales literature made in reliance upon information furnished by and relating to the Trading Advisor, its trading methods or its trading performance.   (vii) Since the respective dates as of which information is given in the Offering Memoranda, there has not been any material adverse change in the condition, financial or otherwise, or business of the Trading Manager or the Trading Company, whether or not arising in the ordinary course of business.   17       (viii) This Agreement has been duly and validly authorized, executed and delivered by the Trading Manager on behalf of the Trading Company and constitutes a valid, binding and enforceable agreement of the Trading Company and the Trading Manager in accordance with its terms.   (ix) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and in the Offering Memoranda will not violate, or constitute a breach of, or default under, the Trading Manager’s certificate of incorporation or bylaws, or the Trading Company’s Certificate of Formation or Operating Agreement, or any material agreement or instrument by which either the Trading Manager or the Trading Company, as the case may be, is bound or any material order, rule, law or regulation applicable to the Trading Manager or the Trading Company of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Manager or the Trading Company.   (x) Except as set forth in the Offering Memoranda, there has not been in the five years preceding the date of the Offering Memoranda and there is not pending or, to the Trading Manager’s knowledge, threatened, any action, suit or proceeding at law or in equity before or by any court or by any federal, state, municipal or other governmental body or any administrative, self-regulatory or commodity exchange organization to which the Trading Manager or the Trading Company is or was a party, or to which any of the assets of the Trading Manager or the Trading Company is or was subject; and neither the Trading Manager nor any of the principals of the Trading Manager (“Trading Manager Principals”) has received any notice of an investigation by the NFA, CFTC or any other administrative or self-regulatory organization regarding non-compliance by the Trading Manager or the Trading Manager Principals or the Trading Company with the CEAct, the Securities Act of 1933, as amended, or any applicable laws which are material to an investor’s decision to invest in a Member.   (xi) The Trading Manager and the Trading Manager Principals have all federal, state and foreign governmental, regulatory and exchange approvals and licenses, and have effected all filings and registrations with federal, state and foreign governmental agencies required to conduct their business and to act as described in the Offering Memoranda or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement. The Trading Manager’s principals identified in the Offering Memoranda are all of the Trading Manager Principals.   (xii) The Trading Company is and shall remain in material compliance in all respects with all laws, rules, regulations and orders of any government, governmental agency or self-regulatory organization applicable to its business as described in the Offering Memoranda and this Agreement.   18       (xiii) The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the foregoing representations or warranties inaccurate, the Trading Manager shall promptly notify the Trading Advisor of the nature of such event.   (b) Covenants of the Trading Manager. The Trading Manager covenants and   agrees that: (i) The Trading Manager shall maintain all registrations and memberships necessary for the Trading Manager to continue to act as described herein and in the Offering Memoranda and to all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the Trading Manager’s ability to act as described herein and in the Offering Memoranda.   (ii) The Trading Manager shall inform the Trading Advisor immediately as soon as the Trading Manager, the Trading Company or any of their principals becomes the subject of any lawsuit, investigation, claim, or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting the business of the Trading Manager or the Trading Company. The Trading Manager shall also inform the Trading Advisor immediately if the Trading Manager or the Trading Company or any of their officers become aware of any material breach of this Agreement by the Trading   (iii) The Trading Company will furnish to the Trading Advisor copies of the Offering Memoranda, and all amendments and supplements thereto, in each case as soon as available and will ensure that the Members do not use any such amendments or supplements as to which the Trading Advisor in writing has reasonably objected.   11.   Merger or Transfer of Assets.   The Trading Manager, Trading Company or the Trading Advisor may merge or consolidate with, or sell or otherwise transfer its business, or all or a substantial portion of its assets, to any entity upon written notice to the other parties.   12.   Complete Agreement.   This Agreement constitutes the entire agreement between the parties with respect to the matters referred to herein, and no other agreement, verbal or otherwise, shall be binding as between the parties unless in writing and signed by the party against whom enforcement is sought.   13.   Assignment.   Subject to Section 11, hereof, this Agreement may not be assigned, transferred by operation of law, change in control or otherwise, by any party hereto without the express prior written consent of the other parties hereto.   19       14.   Amendment.   This Agreement may not be amended except by the written consent of the parties hereto.  No waiver of any provision of this Agreement shall be implied from any course of dealings between the parties, from any failure by any party to assert its rights hereunder or any occasion or series of occasions.   15.   Severability.   The invalidity or unenforceability of any provision of this Agreement or any covenant herein contained shall not affect the validity or enforceability of any other provision or covenant hereof or herein contained and any such invalid provision or covenant shall be deemed to be severable.   16.   Closing Certificates.   (a) The Trading Advisor shall, at the Members’ initial closing and at the request of the Trading Manager at any monthly closing (as described in the Offering Memoranda), provide the following:   (i) To the Trading Manager, the Trading Company and the Members, a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that;   (A) the representations and warranties by the Trading Advisor in this Agreement are true, accurate, and complete on and as of the date of the closing, as if made on the date of the closing; and   (B) the Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.   (ii) To the Trading Manager, the Trading Company and the Members, a report as of the closing date which shall present, for the period from the date after the last day covered by the historical performance records in the Offering Memoranda to the latest practicable day before closing, figures which shall be a continuation of such historical performance records and which shall certify that such figures are, to the best of such Trading Advisor’s knowledge, accurate in all material respects.   (b) The Trading Advisor shall, at or before the Members’ initial closing (as described in the Offering Memoranda), provide a legal opinion of the Trading Advisor’s counsel in a form acceptable to the Trading Manager.   (c) The Trading Manager shall, at the Members’ initial closing and at the request of the Trading Advisor at any closing (as described in the Offering Memoranda), provide the following:   20       (i) To the Trading Advisor, a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:   (A) the representations and warranties by the Trading Company and the Trading Manager in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing;   (B) no order preventing or suspending the use of the Offering Memoranda has been issued by the CFTC, the Securities Exchange Commission, any state securities commission, or the NFA or other self-regulatory organization and no proceedings for that purpose shall have been instituted or are pending or, to the knowledge of the Trading Manager, are contemplated or threatened under the CEAct; and   (C) The Trading Company and the Trading Manager have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.   17.   Inconsistent Filings.   If the Trading Advisor intends to file, to participate in the filing of, or to publish any description of the Trading Advisor, or of its respective principals or trading approaches that is materially inconsistent with those in the Disclosure Information, the Trading Advisor shall inform the Trading Manager of such intention and shall furnish copies of all such filings or publications at least ten Business Days prior to the date of filing or publication.   18.   Promotional Materials.   The Trading Manager and the Trading Company will not distribute or supplement any promotional material relating to the Trading Advisor unless the Trading Advisor has approved reasonable prior notice of and a copy of such promotional material and has received such material in writing.   19. Track Record.  The track record and other performance information of the Members shall be the property of the Trading Manager and not the Trading Advisor.  For the avoidance of doubt, the Trading Advisor is authorized to include and utilize the track record and performance of the account(s) it trades for the Trading Company as part its composite performance results.   20.   Use of Name   (a) The Trading Advisor hereby consents to the non-exclusive use by the Trading Company of (a) the name "Global Futures Portfolio", with respect to the Trading Company and (b) the name "Global Futures Portfolio" in any documentation regarding the Trading Company, only so long as the Trading Advisor serves as a trading advisor to the Trading Company.  Each of the Trading Company and the Trading Manager agree to indemnify and hold harmless the Trading Advisor, its partners, directors, officers, affiliates, employees and agents from and against any and all costs, losses, claims, damages or liabilities, joint or several, including, without limitation, attorneys' fees and disbursements, which may arise out of the Trading Company's or the Trading Manager's misuse of the name "Global Futures Portfolio" or out of any breach of, or failure to comply with, this Section 20.   21       (b) Upon termination of this Agreement, the Trading Company, at its expense, as promptly as practicable:  (i) shall take all necessary action to cause the Offering Memoranda and organizational documents of the Trading Company to be amended in order to eliminate any reference to "Global Futures Portfolio" (except to the extent required by law, regulation or rule); and (ii) shall cease to use in any other manner, including, but not limited to, use in any sales literature or promotional material, the name "Global Futures Portfolio" or any name, mark or logo type derived from it or similar to it (except to the extent required by law, regulation or rule).   21.   Notices.   All notices required to be delivered under this Agreement shall be in writing and shall be effective when delivered personally on the day delivered, by facsimile on receipt confirmation, by email followed by delivery of an original, or when given by registered or certified mail, postage prepaid, return receipt requested, on the second business day following the day on which it is so mailed, addressed as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):     if to the Trading Company:   Morgan Stanley Managed Futures Altis I, LLC  c/o Demeter Management Corporation Managed Futures Department 330 Madison Avenue, 8th Floor Attn:  Walter Davis Facsimile: 212-907-2750 Email: [email protected]       if to the Trading Manager:       Demeter Management Corporation   Managed Futures Department Attn:  Walter Davis             Timothy P. Selby Alston & Bird LLP 90 Park Avenue Facsimile: (212) 210-9444 Email: [email protected]     if to the Trading Advisor:     Altis Partners (Jersey) Limited Charles House Charles Street  St Helier Jersey Channel Islands Attn: Natasha Reeve Watts Facsimile: 44 870 460 1980 Email [email protected]     22.   Continuing Nature of Representations Warranties and Covenants: Survival.   All representations, warranties and covenants contained in this Agreement shall be continuing during the term of this Agreement and the provisions of this Agreement shall survive the termination of this Agreement with respect to any matter arising while this Agreement was in effect.  Each party hereby agrees that as of the date of this Agreement it is, and during its term shall be, in compliance with its representations, warranties and covenants herein contained.  In addition, if at any time any event occurs which would make any of such representations, warranties or covenants not true, the affected party will use its best efforts to promptly notify the other parties of such fact.   22         23.   Third-Party Beneficiaries.   Except for each of the Members who shall be a third-party beneficiary of the applicable provisions of this Agreement, this Agreement is not intended and shall not convey any rights to a party to this Agreement.   24.   Governing Law.   of the State of New York.  If any action or proceeding shall be brought by a party to this Agreement or to enforce any right or remedy under this Agreement, each party hereto hereby consents and will submit to the jurisdiction of the courts of the State of New York or any Federal court sitting in the County, City and State of New York.  Any action or proceeding brought by any party to this Agreement to enforce any right, assert any claim or obtain any relief whatsoever in connection with this Agreement shall be brought by such party exclusively in the courts of the State of New York or any federal court sitting in the County, City and State of New York.     23         25.   Remedies.   In any action or proceeding arising out of any of the provisions of this Agreement, the Trading Advisor agrees not to seek any prejudgment equitable or ancillary relief. The Trading Advisor agrees that its sole remedy in any such action or proceeding shall be to seek actual monetary damages for any breach of this Agreement, except that Trading Advisor may seek a declaratory judgment with respect to the indemnification provisions of this Agreement.   26.   Headings.   Headings to sections herein are for the convenience of the parties only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.   27.   Successors.   This Agreement including the representations, warranties and covenants contained herein shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns, and no other person shall have any right or obligation under this Agreement.   28.   Counterparts.   This Agreement may be executed in counterparts, each of which shall be deemed an   29.   Waiver of Breach.   The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or of a breach by any other party.  The failure of a party to insist upon strict adherence to any provision of the Agreement shall not constitute a waiver or thereafter deprive such party of the right to insist upon strict adherence.   24       IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of the undersigned as of the day and year first above written.     MORGAN STANLEY MANAGED FUTURES ALTIS I, LLC by Demeter Management Corporation Trading Manager     By: Walter Davis                                                       Walter Davis Chairman and President       DEMETER MANAGEMENT CORPORATION       By: Walter Davis                                                       Walter Davis Chairman and President       ALTIS PARTNERS ( JERSEY) LIMITED   By: /s/ Natasha Reeve-Watts  Name: Natasha Reeve-Watts Title: Principal     By: /s/ S. Hedgecock                                                       Name: S. Hedgecock Title: Principal   25       EXHIBIT A   Morgan Stanley Managed Futures MSC Fund Operations Procedures Following is a list of abbreviations used in this Exhibit A: ·    “Fund(s)” refers to Morgan Stanley Managed Futures Funds that utilize MS&Co/MSIL/MSCG as a clearing commodity broker. ·   “Futures” is used to identify exchange traded futures, or forward contracts, and options on the same, that are cleared through a clearing house. ·   “FX” is used to identify non-exchange traded forward currency contracts, and options on the same, which are settled directly between the principals of the trades. ·   “General Partner” shall mean Demeter Management Corporation. ·   “MF” is Morgan Stanley Managed Futures. ·   “MSC” is MS&Co. and/or MSIL and/or MSCG (the Clearing Commodity Broker or FX Counterparty, as appropriate). ·   “MS&Co” is Morgan Stanley & Co., Inc. a subsidiary of Morgan Stanley (the Clearing Commodity Broker or FX (Non-Options) Counterparty as appropriate). ·   “MSIL” is Morgan Stanley International Ltd. a subsidiary of Morgan Stanley (a sub Clearing Commodity Broker).  MSIL clears London Metal Exchange (“LME”) transactions on behalf of the Funds. ·   “MSCG” is Morgan Stanley Capital Group a subsidiary of Morgan Stanley (the FX Options Counterparty). CONTACT INFORMATION: Following are the Morgan Stanley departments involved in servicing the Funds and the corresponding contact information. Abbreviation Department Primary Contact Telephone E-mail Futures Desk MSC Futures Trading Desk Brian Jackman Dennis Scurletis 212.761.1782 212.761.2248 [email protected] [email protected] Futures Ops MSC Futures Operations Steve Bucello Erik Barry 212.276.0477 212.276.0578 [email protected] [email protected] FX Desk MSC Foreign Exchange Trading Desk Marlena Demenus 212.761.2700 [email protected] FX Ops MSC Foreign Exchange Operations John Fusco 718.754.4868 [email protected] MF Accounting Morgan Stanley Managed Futures Accounting Joe Tromello Kevin Scully 917.790.5702 917.790.5701 [email protected] [email protected] MF Ops Morgan Stanley Managed Futures Operations Laura Finne   212.905.2720   [email protected] MF Prod Org Morgan Stanley Managed Futures Product Origination Patrick Egan 212.905.2736 [email protected]   MF Strat Plan Morgan Stanley Managed Futures Strategic Planning Chris Barry 212.905.2731 [email protected]   A-1       FUND ACCOUNTS: Account Configuration ·   Futures and Futures Options Trading - For each CTA trading program three Fund trading accounts will be assigned.  A MS&Co segregated account, prefix 052.  A MS&Co secured account, prefix 05A.   A MSIL non-regulated (by the CFTC) account, prefix 045. ·   FX (Non-Options) Trading - One Fund account for each CTA trading program will be assigned at MS&Co, prefix 058. ·   FX Options Trading – One Fund account for each CTA trading program will be assigned at MSCG (if needed), prefix 057. ·   Excess and FX Custody Accounts – For each CTA trading program two Fund accounts will be set up at MS&Co.  One account will be designated as a custody account for MS&Co FX.  MF Ops will maintain equity in the custody account sufficient to cover margin requirements of the FX trading account.  The second account will contain the balance of excess equity that is not required in the custody and futures trading accounts. Statements ·   Futures – The CTA should contact Futures Ops regarding access to Fund futures account statements. ·   FX – The CTA should contact FX Ops regarding access to Fund FX account statements. ·   Excess and Custody – The CTA should contact MF Ops regarding access to the Fund account statements at MS&Co.   A-2       FX TRADING: FX Order Execution ·   FX trading of the Funds must be executed through the MSC FX Desk, unless the General Partner otherwise agrees in a form acceptable to the General Partner.  The CTA should contact the MSC FX Desk for information on trade execution procedures. ·   When trading FX Options, all premiums (on outright trades and cross currency trades) must be booked at the clearing broker so that the premium is stated in USD. EFP Order Execution ·   The CTA may utilize the FX Desk to execute EFP transactions. The futures leg of an EFP will be subject to the futures brokerage fee.  The CTA should contact the FX Desk for information on EFP trade execution procedures. Foreign Currency Conversions ·   The CTA is responsible for conversion into US dollars of all Fund foreign currency balances created as a result of futures and/or FX trading.  The CTA, at its own discretion, should place conversion orders directly to the FX desk. FUTURES TRADING: Order Execution Service ·   The MSC Futures Desk can provide the CTA with order execution facilities.  The CTA should contact the Futures Desk for information on trade execution procedures. “Give Up” Order Execution ·   The CTA shall ensure that a “give-up” execution agreement is in place prior to the execution of any trade through a floor broker in accordance with this Agreement or as otherwise provided in writing to the CTA by the General Partner. ·   On exchanges allowing “give up” execution, the CTA may have orders executed away from MSC and give up trades to MSC for clearing.  The CTA should contact Futures Ops for information on trade “give up” procedures.  The CTA should ensure that executing brokers give trades up on a timely basis.  The CTA should ensure that executing brokers make timely payment on price adjustments, when applicable.   For futures trades at exchanges where give-up execution is not allowed, the CTA must use the execution facilities provided by the Clearing Commodity Broker.  “Give Up” Agreements ·   The CTA may authorize payment of an execution service fee (“Give-Up Fee”) only to the executing clearing firm or the floor broker (the “Executing Broker”) that directly gives the futures trade to the Clearing Commodity Broker for such clearance, and in an amount not greater than the amount permitted by the General Partner from time to time (the “Execution Allowance”).  The Execution Allowance shall be based on the General Partner’s assessment for prevailing competitive rates for Give-Up Fees. ·   The four party FIA/FOA uniform “give up” agreement is the acceptable form for futures “give ups”.  The “Morgan Stanley Managed Futures Give Up Policy and Billing Procedures” and “Morgan Stanley Managed Futures Execution Allowance” schedule will be made part of each “give up” agreement.  The trader version FIA/FOA EFP agreement is the acceptable form for EFP “give ups”.  The CTA should send agreements that have been signed by both the CTA and executing broker to MF Ops, attention Laura Rosengren, Morgan Stanley, Managed Futures, 330 Madison Avenue, 8th Floor, New York, NY 10017. A-3       “Give Up” Execution Payment ·   Give Up Fee Bills in amounts up to the Execution Allowance will be processed by Futures Ops, with notice provided to the CTA.  To the extent that such bills will be greater than the Execution Allowance, the CTA will obtain the prior written consent of the General Partner.  Refer to the  “Morgan Stanley Managed Futures Give Up Policy and Billing Procedures” for specific information. ·   The CTA shall provide that information which may reasonably be requested by the General Partner to verify the Give-Up Fees processed by Futures Ops. ACCOUNT MAINTENANCE: Trade Allocations ·   The CTA is responsible for determining the trade allocation procedure for Fund trading accounts, in accordance with CFTC regulations.  The CTA should ensure that the procedure was followed correctly, and that trades are booked accordingly in Fund accounts. Trade Reporting; (Futures) ·   The CTA is responsible for reporting all trades to Futures Ops on a timely basis to facilitate clearing and reduce operational risk.  The CTA should contact Futures Ops for additional information. Daily Trade Checkout ·   The CTA is responsible for daily, end of trading day, checkout of all trades (including currency conversion trades) with Futures and FX Ops.  The CTA should contact Futures and FX Ops to determine specific checkout procedures. Daily Statement Reconciliation ·   The CTA is responsible for daily statement trade activity and position balancing with FX and Futures Operations.  The CTA should contact FX and Futures Ops to determine specific balancing procedures. ·   The CTA should provide a daily, trade reconciliation for each Fund account to MF Ops, by 10:00 a.m. EST/EDT.  Reconciliation reports can be emailed to [email protected] and should specify trades to be added or canceled in each account, with a valuation versus the current settlement price of the product, and any pending cash adjustments due from executing brokers or for bookkeeping corrections.  (MF Ops provides MF Accounting/the Administrator with adjusting information for the calculation of NAV.)  Please contact MF Ops if you have any questions regarding this procedure. ·   The CTA should notify MF Ops of any incorrect settlement prices it becomes aware of with regard to the MSC account statements of a Fund. Monitoring of Delivery Periods and Option Expirations ·   The CTA is responsible for monitoring delivery periods (first notice dates and last trade dates), option expirations (option expiration and last trade dates), and forward settlement and/or maturity dates. ·   The CTA should take appropriate actions to ensure that futures contracts do not result in delivery. ·   The CTA should ensure that their intentions regarding any open option positions, at the time of expiration, have been communicated appropriately to the Futures or FX Ops areas.  Contact Futures and FX Ops for specific communication procedures. A-4       Margin Maintenance and Cash Transaction (Journal) Reconciliation ·   MF Ops is responsible for balancing of all journal entries in all Fund accounts and for ensuring the requisite corrective action is taken for each reconciling item. ·   MF Ops is responsible for the authorization of Fund margin transfers between MSC and MS&Co accounts for the purpose of maintaining equity (and/or collateral) in amounts sufficient to meet Fund margin requirements in the MSC Futures accounts and the FX custody accounts. TRADING LEVEL NOTIFICATION: ·   For new trading allocations, MF Prod Org will provide notification to the CTA of trading authorization and the trading commencement date, along with notification of the initial trading level. ·   Thereafter, notification of estimated monthly net additions/withdrawals will be distributed by MF Strat Plan.  On the third to last business day of each month a preliminary estimate will be provided.  On the first business day of each month a final estimate will be given.  Any material adjustment (1% of account equity) from the final estimate to the actual will be provided.  Notification will be made via fax or email and the CTA will be asked to acknowledge receipt via fax or email.  Questions regarding this procedure can be directed to MF Strat Plan. ·   Subsequent to a Fund’s monthly closing, actual additions and withdrawals will be processed by MF Accounting/the Administrator via journal entry in the Fund “excess” account at MS&Co. ·   Any other trading level/asset allocation changes will be communicated in writing from MF Prod Org or MF Strat Plan.     FUND ACCOUNTING: Net Asset Value Calculation ·   MF Accounting/the Administrator is responsible for determination of daily NAV estimates for the Funds. ·   MF Accounting/the Administrator will determine the actual month end NAV of a Fund during the monthly closing process. Brokerage Commission and Transaction Fees ·   Brokerage commissions for each Fund will be charged in a manner consistent with the prospectus or offering memorandum.  The CTA should contact MF Accounting/the Administrator for additional information. Fund Fee Processing ·   Fund interest and all Fund fees, exclusive of brokerage commissions and transaction fees, will be processed in a Funds “excess” account at MS&Co. ·   MF Accounting/the Administrator will determine fees due to the CTA during the monthly closing process and notify the CTA of the fees via the monthly performance tables.  The CTA should provide contact information regarding fees to MF Accounting/the Administrator. ·   MF Accounting/the Administrator will make payment of fees to the CTA via wire transfer.  The CTA should provide wire instructions to MF Accounting/the Administrator. A-5       ERROR POLICY: ·   The provisions of Section 2(d) of this Agreement shall be interpreted to mean that the benefit of profitable trading errors made by the CTA when trading on behalf of the Funds shall be awarded to the Funds, whereas the detriment of unprofitable trading errors made by the CTA when trading on behalf of the Funds must be borne by the CTA. BORROWING: The CTA shall not use borrowed money to leverage any trades, unless otherwise approved by the General Partner.     A-6         EXHIBIT B   COMMODITY TRADING AUTHORITY   Dear Altis Partners ( Jersey) Limited:   Morgan Stanley Managed Futures Altis I, LLC (the “Trading Company”) and Demeter Management Corporation, the Trading Company’s Trading Manager (the “Trading Manager”) do hereby make, constitute and appoint you as the Trading Company’s attorney-in-fact to buy and sell futures and forward contracts through such futures commission merchants as shall be agreed on by you and the Trading Manager on behalf of the Trading Company, pursuant to the trading program identified in the Agreement among the Trading Company, the Trading Manger and you as of the ____ day of _________, 2007, as amended or supplemented, and in accordance with the terms and conditions of said Agreement.   This authorization shall terminate and be null, void and of no further effect simultaneously with the termination of the said Agreement.     Very truly yours,     by Demeter Management Corporation Trading Manager     By                                                       Walter Davis Chairman and President       DEMETER MANAGEMENT CORPORATION       By                                                       Walter Davis Chairman and President B-1         EXHIBIT C   FUTURES INTERESTS TRADED     C-1

Title: Juvenile Felony Questions Question:I am a 16 year old Juvenile residing in southern TN. I have two felony charges,1.sexual exploitation of a minor and 2. Solicitation to commit first degree murder. I was placed in a JDC for 92 days and was released on $15k bond/electronic monitoring and I have been to court two times since then. The first time my lawyer just continued it so he had more time to review my case. The second time he said the DA agreed to keep the case in Juvenile court and she offered a plea deal but the plea deal was to go somewhere(I'm not sure where because he talked to my parents not me" until my 19th birthday and to plead guilty to the exact same charges. So here are my questions. 1. How come the plea deal didn't lower any charges? 2. They have not showed a single piece of evidencce to me so I have no idea why I was arrested for those crimes other than the sexual exploitation one. 3. My lawyer said the next court date is a Disposition trial, and I've been reading and It seems disposition is after I've been found guilty but I have no had any other trials and I did not accept the deal and neither did my lawyer so why would the next trial be disposition? 4 . My lawyer told me they had two witnesses but he wouldn't tell me their names or any other proof and he acts like he doesn't know all the evidence himself. So do I have the right to know who the witnesses are and what they are claiming? 5. I'm not familiar with Juvenile cases or sentences so where would I go, and would their be a chance of good behavior? Because I had plans for college and many other things and I just graduated high school so I was hoping bringing things to court proving I have a good mindset unlike before. I was arrested in October of 2017 and I have learned my lesson from being locked up and I am not depressed or mentally unstable anymore. While I was in JDC I have to take mental evaluations and my lawyer said we might pull a insanity plea so I went a bit overboard and now since my results are so bad my lawyer said it's really bad but I did it because I thought it would help and now I'm trying to get evaluated again to prove I'm good now because my court date is a little under 2 months away. TL;DR- 2 felonies, 16, on bond, in Juvenile court, do I have right to see and cross examine witnesses? What is most likely to happen? Plea deal didn't lower any charges or anything at all. Answer #1: You need to bring all of these up to your lawyer, they are much more familiar with your case than we are. Answer #2: &gt;do I have right to see and cross examine witnesses? If you accept a plea bargain, then no, because you will be pleading guilty to the charges negotiated in the plea agreement. If you plead not guilty and go to trial, then the prosecution will call witnesses and your defense attorney will be able to cross examine them. You yourself will see the witnesses from the defense table, but you will not be allowed to speak to them yourself. &gt;What is most likely to happen? No one here can say, there are far too many details that matter but you ought not discuss on any social media. What you write on Reddit and Facebook, etc. are all potential evidence against you. Your defense attorney knows your case and is the best person to advise you on these questions. Ask them at your next meeting.

Exhibit 10.4   LOGO [g343144g03g05.jpg] [DATE] [PARTICIPANT] [ADDRESS]     Re: Restricted Stock Agreement Dear             : Crumbs Bake Shop, Inc. (the “Company”) is pleased to advise you that, pursuant to the Company’s Equity Incentive Plan (the “Plan”), the Company’s Compensation Committee has granted to you shares (the “Award”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), as set forth below (the “Restricted Stock”), subject to the terms and conditions set forth in this Award Agreement and in the Plan: Number of shares of Restricted Stock              Date of Grant              Vesting Date of Restricted Stock              The Award is intended to conform in all respects with and is subject to all applicable provisions of, the Plan (the terms of which are incorporated herein by reference). Certain capitalized terms used herein are defined in the Plan and such definitions shall control in all cases. Inconsistencies between this Award Agreement and the Plan shall be resolved in accordance with the terms of the Plan. 1. Award. (a) Term. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to you the Restricted Stock. Such Restricted Stock will be deemed issued on the date of grant set forth above in the introductory paragraph of this Award Agreement (the “Award Date”), but will be held by the Company or the Company’s transfer agent until the date on which the Restricted Stock vests (as described in paragraph 2 below), in each case subject to restrictions on transfer as set forth in this Award Agreement. (b) Payment of the Restricted Stock Price. You must pay the Company the aggregate par value of the Restricted Stock within ten (10) days of the Award Date (the “Restricted Stock Price”). Upon the forfeiture to the Company of any Restricted Stock on which the restrictions have not lapsed as described below in paragraph 2, the Company shall repay you the pro rata portion of the Restricted Stock Price previously paid by you for Restricted Stock that has been forfeited to the Company within ten (10) days of the forfeiture. 2. Vesting. (a) Vesting. Subject to paragraphs 2(b) and 2(c) below, the Award shall become fully vested three years from the award date, as indicated by the Vesting Date of Restricted Stock set forth in the introductory paragraph of this letter. (b) Effect on Vesting due to Re-Election of Directorship. Subject to paragraph 2(c) below, at such time as you cease to be, or in the event that you do not become, an officer or employee of, or otherwise performing services for (e.g., in a non-employee capacity), the Company or its Subsidiaries for any other reason, all shares of Restricted Stock on which the restrictions have not lapsed shall be immediately forfeited to the Company. (c) Acceleration of Vesting. Except as otherwise provided by the Committee, immediately prior to a Change in Control or at such time as you cease to be an officer or employee of, or otherwise performing services for the Company and its Subsidiaries due to death, disability or retirement (as determined by the Committee in its discretion) during any period of restriction, all restrictions on Restricted Stock granted to you shall lapse. (d) Forfeiture of Restricted Stock. You hereby grant to each officer of the Company (acting solely) the power of attorney to take such actions on your behalf to cause the Restricted Stock to be cancelled and returned to the Company in the event that the Restricted Stock is forfeited. Such power of attorney shall be without further action on behalf of you. (e) Change in Control. If there is a Change in Control of the Company, then the effect of such Change in Control on all Restricted Stock grants shall be governed by the terms of the Plan. 3. Taxes. (a) Payment of Taxes. The payment of any taxes arising as a result of this grant shall be your responsibility. You shall (i) pay to the Company or its designee, upon its demand such amount as may be demanded for the purpose of satisfying the Company’s obligation to withhold federal, state, local or foreign income, employment or other taxes incurred by reason of the vesting of the Restricted Stock or your filing of a Section 83(b) election (the “Tax Withholding Amount”) and (ii) provide the Company with any forms, documents or other information reasonably required by the Company in connection herewith. In order to satisfy the condition of clause (i), you may (a) make payment of the Tax Withholding Amount in United States dollars cash, (b) tender Mature Shares owned by you which have a Fair Market Value equal to the Tax Withholding Amount, or (c) request that the Company withhold from the Common Shares to be issued to you the number of shares which have a Fair Market Value equal to the Tax Withholding Amount, (d) make payment in such other form as the Committee may determine in its sole discretion, or (e) tender a combination of the forms of payment provided for above in clauses (a) through (d) of this paragraph. If the amount requested for the purpose of satisfying the withholding obligation is not paid, the Company may refuse to furnish shares of the Restricted Stock. (b) You have sought your own tax advice regarding this Grant, including, without limitation, advice on whether or not to file a Section 83(b) election. 4. Company Requirement. Notwithstanding paragraph 3 above, the Company, to the extent permitted or required by law, shall have the right to deduct from any payment of any kind (including salary or bonus) otherwise due to you, an amount equal to any federal, state or local taxes of any kind required by law to be withheld with respect to the delivery of the Restricted Stock under this Award Agreement. 5. Transferability of Award. Subject to Section 16(b) of the Plan, prior to the vesting of the Restricted Stock, you may not sell, assign, transfer, pledge, hypothecate or otherwise dispose of such Restricted Stock. Following the vesting of the Restricted Stock, you shall dispose of such Restricted Stock only in accordance with applicable securities laws. 6. Adjustments. Subject to Section 12 of the Plan, in the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger, consolidation, distribution of assets, or any other change in the corporate structure or shares of the Company, the Committee shall make such adjustments as it deems appropriate in the number and kind of shares covered by the Award specified herein. Notwithstanding anything in this Award Agreement to the contrary, the Committee may take the foregoing actions without your consent, and the determination of the Committee shall be conclusive and binding on all persons for all purposes. 7. Amendment or Substitution of Award. The terms of the Award may be amended from time to time by the Committee in its discretion in any manner that it deems appropriate (including, but not limited to, acceleration of the date of the vesting of the Award); provided that, except as otherwise provided in Section 14(b) of the Plan, no such amendment shall adversely affect in a material manner any of your rights under the award without your written consent.         CRUMBS BAKE SHOP, INC.         Julian R. Geiger, President and CEO         Accepted:             , 2012.       By:             [PARTICIPANT]      

5. Conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (

EXHIBIT 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the quarterly report of Frontier Beverage Company, Inc. (the “Company”) on Form 10-Q for the quarterly period ending June 30, 2010 as filed with the Securities and Exchange Commission on August 16,2010 (the “Report”), I, Anthony Peppers, Principal Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that: 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 result of operations of the Company. /s/ Anthony Peppers Anthony Peppers Principal Financial and Accounting Officer August 16,2010 This certification accompanies the Report pursuant to § 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed filed by the Company for purposes of § 18 of the Securities Exchange Act of 1934, as amended.

EX-10 6 exhibit104.htm Exhibit 10.4 EXHIBIT 10.4 MEMORANDUM OF UNDERSTANDING       THIS MEMORANDUM OF UNDERSTANDING (this " Agreement" ) is entered into as of April 9, 2002 (the " Effective Date" ) among ALTERRA HEALTHCARE CORPORATION, a Delaware corporation (" Guarantor" ), ALS LEASING, INC., a Delaware corporation (" ALS" ), ASSISTED LIVING PROPERTIES, INC., a Kansas corporation (" ALP" and, together with ALS, " Tenant" ), and the ENTITIES LISTED ON SCHEDULE   1 to this Agreement (collectively, " Landlord" ). R E C I T A L S            A.        Landlord and Tenant have entered into that certain Master Lease dated as of even date herewith (the " Lease" ) pursuant to which Tenant shall lease from Landlord the Premises as described therein. Initially capitalized terms used but not otherwise defined in this Agreement shall have the meanings given to them in the Lease.            B.        Pursuant to its separate Guaranty of Master Lease and Letter of Credit Agreement of even date herewith (the " Guaranty" ), Guarantor has unconditionally guarantied to Landlord, among other things, the performance by Tenant under the Lease.            C.        It is presently contemplated by Guarantor and Tenant that Guarantor (but not Tenant) may file a voluntary petition for protection under Chapter 11 of the United States Bankruptcy Code (the " Bankruptcy Code" ). Tenant and Guarantor have requested that Landlord forbear from exercising certain remedies available to it upon a bankruptcy filing by or against Guarantor under the Lease and Guaranty.            D.        Guarantor, Tenant and Landlord desire to set forth certain mutual understandings and agreements concerning Guarantor's potential filing under the Bankruptcy Code, and the effect of the same under the Lease and Guaranty. A G R E E M E N T            NOW, THEREFORE, in consideration of the foregoing Recitals (which by this reference are incorporated herein), and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:            Forbearance. Landlord agrees that, during the Forbearance Period, Landlord will not pursue any remedy under the Lease or Guaranty against Tenant or Guarantor on account of:            An Event of Default arising under Section   12(g) of the Lease as a result of:                 Guarantor's failure to pay its debts as they become due or Guarantor's admission in writing of its inability to pay its debts generally (except in each case those related to the Lease or Guaranty), where such failure to pay or admission occurs either (A)   on or before the Filing Deadline, or (B)   during the pendency of a Conforming Bankruptcy Proceeding; -1-            The filing by Guarantor, after the Funding Date but on or before the Filing Deadline, of a voluntary petition under Chapter 11 in or to institute a Conforming Bankruptcy Proceeding;            The filing by any Person on, or before the Filing Deadline, of an involuntary petition under Chapter  7 or Chapter 11 against Guarantor, provided that any such involuntary petition is, within twenty (20) days after service of such petition on Guarantor, dismissed or converted into a voluntary petition under Chapter  11 in or to institute a Conforming Bankruptcy Proceeding; or            An Event of Default with respect to Guarantor arising under Section  12(d)(iv) of the Lease either (A)  on or before the Filing Deadline, or (B)  during the pendency of a Conforming Bankruptcy Proceeding; or            An Event of Default arising under Section 12(f)(ii) of the Lease during the pendency or upon emergence from a Conforming Bankruptcy Proceeding, but only to the extent consistent with a Conforming Plan.            Forbearance Defaults. Upon the occurrence of any Forbearance Default (as defined below), Landlord's obligations under this Agreement shall immediately terminate and be of no further force or effect, and Landlord shall be entitled to pursue any remedy available to it under the Lease, the Guaranty or any other agreement executed in connection therewith or as may be otherwise available at law or in equity, including any such remedy with respect to any damages suffered by Landlord during the Forbearance Period. The occurrence during the Forbearance Period of any of the following events shall constitute an immediate " Forbearance Default" without any requirement of notice to Tenant or the right or opportunity of Tenant to cure or remedy such Forbearance Default:            In any Conforming Bankruptcy Proceeding or any other bankruptcy proceeding, (i) Guarantor rejects or attempts to reject the Guaranty, or assumes or attempts to assume the Guaranty in any form other than the form executed by Guarantor as of the Effective Date, (ii) Guarantor files a plan that provides any treatment of the Guaranty other than unimpairment;            Tenant or Guarantor fails to pay all pre- and post-petition amounts due under the Lease and the Guaranty as and when due under the Lease and Guaranty, or otherwise fails to perform any covenant or agreement therein, except to the extent expressly allowed to contrary under this Agreement during the Forbearance Period; proceeding, a trustee or examiner with expanded powers is appointed for Guarantor; In any Conforming Bankruptcy Proceeding or any other bankruptcy proceeding, Guarantor loses the exclusive right to file a plan of reorganization under Section 1121 of Chapter 11 (" Exclusivity"), or, prior to the expiration of Exclusivity, Guarantor fails to file a Conforming Plan; -2-            Without limiting the generality of Section  2(b), an Event of Default with respect to Tenant occurs under Section  12(g) of the Lease;            A Conforming Bankruptcy Proceeding is (i) dismissed, except upon the motion of Guarantor, or (ii) is converted into any proceeding, voluntary or involuntary, under Chapter 7; or            Guarantor files or pursues any plan in any bankruptcy proceeding other than a Conforming Plan.            Letters of Credit; Insurance. Guarantor and Tenant covenant that during the pendency of any Conforming Bankruptcy Proceeding they shall continue to use commercially reasonable efforts to cause to be issued, during such Conforming Bankruptcy Proceeding or upon emergence therefrom, Letters of Credit, to the extent available on commercially reasonable terms, in accordance with Section 4.3 of the Lease. Upon the filing by Guarantor of any voluntary petition under Chapter 11 it shall have in place immediately after such filing the policies of insurance required under the Lease.            Certain Reserves and Escrows. During the Forbearance Period, provided that there exists no Event of Default under the Lease, Landlord shall continue to fund, make payments from and reimburse Tenant for payments from, as applicable, the CapEx Reserve and the Tax Escrow, in each case to the extent and in the manner provided in the Lease.            Waiver and Cure. On the date (the "Plan Effective Date") upon which a Conforming Plan becomes effective in accordance with a Conforming Bankruptcy Proceeding as contemplated by this Agreement, any Event of Default described in Sections 1(a)-(c) above existing as of the Plan Effective Date shall be deemed waived by Landlord and cured by Tenant, provided that no Forbearance Default has then occurred. Certain Definitions. As used in this Agreement, the following terms shall have the definitions indicated. Certain other terms are defined elsewhere in this Agreement.            "Chapter 7" shall mean Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et seq.            "Chapter 11" shall mean Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq.            "Conforming Bankruptcy Proceeding" shall mean a proceeding in United States Bankruptcy Court (a)  instituted pursuant to a voluntary petition for reorganization filed by Guarantor under Chapter 11 (or an involuntary petition filed by any Person that is converted by Guarantor into a voluntary petition under Chapter 11 pursuant to Section 1(a)(iii)), and (b) in which Guarantor at all times during the pendency of such proceeding is pursuing confirmation of a Conforming Plan. -3-            "Conforming Plan" shall mean a plan of reorganization of Guarantor containing each of the following elements, and that will result upon confirmation in:            (a) The Guaranty remaining unimpaired;            (b)  Guarantor and its wholly owned subsidiaries continuing to own or operate not less than three hundred (300) assisted living residences;            (c) On a pro forma basis, the ratio of Guarantor's Debt to Guarantor's Cash Flow not exceeding 12:1.0; and            (d) Upon the confirmation and implementation of the such plan, at least seventy percent (70%) of the Guarantor's voting stock on a fully diluted basis being owned by (i) Persons who had, prior to filing of the bankruptcy petition instituting the Conforming Bankruptcy Proceeding, (A) an ownership or other interest in Guarantor's stock or debt (including debt of Guarantor's subsidiaries guaranteed by Guarantor) and (B) a joint venture ownership interest in Guarantor's assets or Guarantor's subsidiaries' assets, and (ii) Related Persons of Persons described in the foregoing clause (i), but excluding each such Person or Related Person who: (1) held less than a Material Investment in Guarantor on the Effective Date, and (2) subsequent to the Effective Date and prior to or contemporaneously with the confirmation and implementation of such plan increases their respective investment (on a cost basis) in the Guarantor by greater than ten percent (10%).            "Filing Deadline" shall mean December 31, 2002.            "Forbearance Period" shall mean the period commencing on the Effective Date and ending on the earlier to occur of (a) the date upon which a Forbearance Default occurs, or (b) the Filing Deadline.            " Funding Date" shall mean the earlier to occur of (a) the date upon which Landlord receives the proceeds of the second tranche of the acquisition loan obtained by Landlord in connection with the acquisition of the Premises, or (b) the date that is forty-five (45) days after the Effective Date.            "Guarantor's Cash Flow" shall mean, for any applicable fiscal quarter, the net income of Guarantor for such quarter, adjusted to add thereto, without duplication, (a) interest expense, (b) income tax expense, (c) depreciation and amortization expense, and (d) any other noncash adjustments, in each case determined in accordance with generally accepted accounting principles, consistently applied.            "Guarantor's Debt" shall mean all debt, guarantees and all convertible debt issued by Guarantor, including zero coupon instruments and non-cash paying securities (such as convertibles and PIKs), but excluding preferred equity securities that are not convertible to debt, all of the above on a consolidated basis with Guarantor's subsidiaries and other Affiliates. -4-            "Material Investment" as used in the definition of Conforming Plan, shall mean an investment in the stock or debt of Guarantor or of any subsidiary of Guarantor, to the extent that such debt is guaranteed by Guarantor, in the amount of at least Two Million Dollars ($2,000,000) on a cost basis.            "Related Persons" shall mean, as to a specified Person, another Person related to, affiliated with or who controls, is controlled by or is under common control with such specified Person.            Ratification and Acknowledgment. Tenant and Guarantor hereby acknowledge the full force and effect of, and ratify their respective obligations under, the Lease, the Guaranty, the LC Agreement and the Stock Pledge, in each case without modification or amendment.            Identification of Agreement. This Agreement is the agreement referred to in clause (a) of Section  22 of the Lease as the "Memorandum of Understanding."            Miscellaneous. Any notices to be given under or with respect to this Agreement shall be given to the respective Persons and in the manner described in the Lease and Guaranty. The titles and headings in this Agreement are for convenience of reference only and shall not in any way affect the meaning or construction of any provision. Since each party has been represented by counsel and this Agreement has been freely and fairly negotiated, all provisions shall be interpreted according to their fair meaning and shall not be strictly construed against any party. If any part of this Agreement shall be determined to be invalid or unenforceable, the remainder shall nevertheless continue in full force and effect. Time is of the essence, and whenever action must be taken (including the giving of notice or the delivery of documents) hereunder during a certain period of time or by a particular date that ends or occurs on a Saturday, Sunday or federal holiday, then such period or date shall be extended until the immediately following business day. Whenever the words "including", "include" or "includes" are used in this Agreement, they shall be interpreted in a non-exclusive manner as though the words "without limitation" immediately followed. Whenever the words day or days are used in this Agreement, they shall mean "calendar day" or "calendar days" unless expressly provided to the contrary. Unless otherwise expressly provided, any reference to any "Section" means a section of this Agreement (including all subsections), and any reference to any "Exhibit" or "Schedule" means an exhibit or schedule attached hereto. If more than one Person is Tenant hereunder, their liability and obligations hereunder shall be joint and several. This Agreement (a) contains the entire agreement of the parties as to the subject matter hereof and supersedes all prior or contemporaneous verbal or written agreements or understandings, (b) may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document, (c) may only be amended by a writing executed by the parties, (d) may be assigned by Landlord (including any assignment for security purposes) to any assignee of, or successor in interest to, its rights under the Lease, (e) shall inure to the parties, (f) is not entered into for, nor shall it inure to, the benefit of any third party, and no such party shall be entitled to rely hereon, (g) shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to the conflict of laws rules thereof, and (h) incorporates by this reference any Exhibits and Schedules attached hereto. -5- THIS AGREEMENT DOES NOT CONSTITUTE (A) A FORBEARANCE FOR ANY ACT OF BANKRUPTCY OR SIMILAR ACT BY TENANT, OR (B) A CONSENT BY LANDLORD TO ANY PLAN OF REORGANIZATION IN BANKRUPTCY OF GUARANTOR, INCLUDING ONE THAT IS A CONFORMING PLAN, WHICH CONSENT COULD BE SET FORTH ONLY IN A MORE DEFINITIVE LOCK-UP AGREEMENT. [Signatures begin on next page.] -6-            IN WITNESS WHEREOF, this Agreement has been executed by Tenant, Guarantor and Landlord as of the date first written above. "TENANT" ALS LEASING, INC., a Delaware corporation By:     /s/ Mark W. Ohlendorf Name:     Mark W. Ohlendorf Title:     Vice President      Witness:     /s/ Sarah Wits                                Witness:/s/ Kristin Ferge      ASSISTED LIVING PROPERTIES, INC., a Kansas corporation Title:     Vice President      Ferge      S-1 "GUARANTOR" ALTERRA HEALTHCARE CORPORATION, a Delaware corporation Ferge      S-2 "LANDLORD" JER/NHP SENIOR LIVING ACQUISITION, LLC, By: JER/NHP SENIOR HOUSING, LLC, a Delaware limited liability company, its sole member           By: NATIONWIDE HEALTH PROPERTIES, INC., a Maryland corporation, its managing member                 By:  /s/ Donald D. Bradley Name:  Donald D. Bradley Title:  Senior Vice President & General Counsel Witness:     /s/ Sharina Ross                              Witness:     /s/ Frank M. Crance JER/NHP SENIOR LIVING TEXAS, L.P., a Texas limited partnership     By: JER/NHP MANAGEMENT TEXAS, LLC, a Texas limited liability company, its general partner     Title:  Manager Frank M. Crance S-3 JER/NHP SENIOR LIVING WISCONSIN, LLC its sole member a Maryland corporation, its managing member             Frank M. Crance JER/NHP SENIOR LIVING KANSAS, INC., a Kansas corporation Title:        Secretary and Treasurer Frank M. Crance S-4 SCHEDULE 1 LANDLORD ENTITIES 1.        JER/NHP Senior Living Texas, L.P., a Texas limited partnership 2.        JER/NHP Senior Living Wisconsin, LLC, a Delaware limited liability company JER/NHP Senior Living Kansas, Inc. , a Kansas corporation 1. (f/k/a Meditrust of Kansas, Inc., a Kansas corporation) 4.        JER/NHP Senior Living Acquisition, LLC, a Delaware limited liability company Schedule 1

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 6-K REPORT OF FOREIGN PRIVATE ISSUER Pursuant to Section 13a-16 or 15d-16 under the Securities Exchange Act of 1934 For October 27, 2011 Commission File Number: 1-6702 NEXEN INC. (Translation of registrant’s name into English) 801- 7th Avenue S.W. Calgary, Alberta, Canada, T2P 3P7 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F. Form 20-F Form 40-F X Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): DOCUMENTS FILED AS PART OF THIS FORM 6-K See the Exhibit Index to this Form 6-K. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. NEXEN INC. (Registrant) Date: October 27, 2011 By: /s/ C. James Cummings Name: C. James Cummings Title: Assistant Secretary Form 6-K Exhibit Index Exhibit Number Description Press Release dated October 27, 2011

Exhibit 99.2 NETWORKING (A Business of Avaya Inc.) Special Purpose Interim Combined Financial Statements For the Six Months Ended March 31, 2017 and 2016 (Unaudited) Networking (A Business of Avaya Inc.) Index to Special Purpose Interim Combined Financial Statements (unaudited) Page Special Purpose Interim Combined Statements of Assets to be Acquired and Liabilities to be Assumed 2 Special Purpose Interim Combined Statements of Revenues and Direct Expenses 3 Notes to Special Purpose Interim Combined Financial Statements 4 Networking (A Business of Avaya Inc.) Special Purpose Interim Combined Statements of Assets to be Acquired and Liabilities to be Assumed March 31, 2017 and September 30, 2016 (Unaudited) (In millions) March 31, September 30, ASSETS ACQUIRED Current assets: Accounts receivable, net $ $ Inventory Other current assets Total current assets Property, plant and equipment, net Acquired intangible assets, net Goodwill Other assets Total assets acquired $ $ LIABILITIES ASSUMED Current liabilities: Accounts payable $ $ Payroll and other obligations Deferred revenue Other current liabilities Total current liabilities Restructuring reserve Pension liability Other liabilities Total liabilities assumed $ $ NET ASSETS ACQUIRED AND LIABILITIES ASSUMED $ $ The accompanying Notes to Special Purpose Interim Combined Financial Statements are an integral part of these statements. 1 Networking (A Business of Avaya Inc.)Special Purpose Interim Combined Statements of Revenues and Direct Expenses For the six months ended March 31, 2017 and 2016 (Unaudited) (In millions) Six months ended March 31, REVENUES Products $ $ Services $ $ DIRECT EXPENSES Cost of revenues Products $ $ Services Amortization of acquired technology intangible assets Selling, general and administrative Research and development Total direct expenses DEFICIT OF REVENUES OVER DIRECT EXPENSES $ $ The accompanying Notes to Special Purpose Interim Combined Financial Statements are an integral part of these statements. 2 Networking (A Business of Avaya Inc.) Notes to Special Purpose Interim Combined Financial Statements (unaudited) 1. Basis of Presentation and Significant Accounting Policies

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C.20549 FORM 10-K/A (Mark One) þ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December28, 2008 OR o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF For the transition period from to Commission file number:0000-26734 SANDISK CORPORATION (Exact name of registrant as specified in its charter) Delaware 77-0191793 (State or other jurisdiction of incorporation or organization) (I.R.S.Employer Identification No.) 601 McCarthy Blvd. Milpitas, California 95035 (Address of principal executive offices) (Zip Code) (408) 801-1000 (Registrant’s telephone number, including area code) Securities registered pursuant to Section 12(b) of the Act: Title of each class Name of each exchange on which registered Common Stock, $0.001 par value; Rights to Purchase Series A Junior Participating Preferred Stock NASDAQ Global Select Market Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.YesþNo¨ Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act.Yes¨Noþ Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.YesþNo¨ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form10-K or any amendment to this Form 10-K.¨ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.(Check one): Large accelerated filerþ Accelerated filer¨ Non accelerated filer¨ Smaller reporting company¨ (Do not check if a smaller reporting company) Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).Yes¨Noþ As of June29, 2008, the aggregate market value of the registrant’s common stock held by non-affiliates of the registrant was $3,426,356,806 based on the closing sale price as reported on the NASDAQ Global Select Market. Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date. Class Outstanding at January30, 2009 Common Stock, $0.001 par value per share 226,149,437 shares DOCUMENTS INCORPORATED BY REFERENCE Document Parts Into Which Incorporated Annual Report to Stockholders for the Fiscal Year Ended December28, 2008(Annual Report) Parts I, II, and IV Proxy Statement for the Annual Meeting of Stockholders to be held May27,2009 (Proxy Statement) Part III Amendment No. 1 to the Annual Report on Form 10-K For the Year Ended December 28, 2008 EXPLANATORY NOTE SanDisk Corporation (the “Company”) is filing this Amendment No. 1 to its Annual Report on Form 10-K for the year ended December 28, 2008, which was originally filed on February 25, 2009 (the “Original 10-K”), to correct a clerical error in which a number was placed in the wrong table in the Company’s Notes to Consolidated Financial Statements. The Company: revised Note 3, “Investments and Fair Value Measurements,” to eliminate $5,714,000 as derivative liabilities in Significant Unobservable Input (Level 3) in thefirst table on page F-15; and revised Note 6, “Derivatives and Hedging Activities,” to include $5,714,000 as foreign exchange contracts not designated in Derivative Liabilities Reported in Other Current Accrued Liabilities for the year ended December 30, 2007 in thefirst table on page F-22. Except for the foregoing amended items, all of the information provided in this Form 10-K/A is unchanged from the Original 10-K. SANDISK

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ————— FORM 10-Q ————— (Mark One) þ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934. For the quarterly period ended June 30, 2011 OR ¨ TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934. For the transition period from to . Commission file number 001-32277 Crexendo, Inc. (Exact name of registrant as specified in its charter) Delaware 87-0591719 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 1615 South 52nd Street, Tempe, AZ (Address of Principal Executive Offices) (Zip Code) (623) 242-5959 (Registrant’s telephone number, including area code) iMergent, Inc. (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. YesþNo¨ 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 Rule405 of RegulationS-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). YesþNo¨ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (check one). Large accelerated filer ¨ Accelerated filer ¨ Non-accelerated filer ¨ Smaller reporting company þ Indicate by check mark whether the registrant is a shell company (as defined in Rule12b-2 of the Exchange Act). Yes¨Noþ. The number of shares outstanding of the registrant’s common stock as of August 8, 2011 was 10,663,787. INDEX PART I – FINANCIAL INFORMATION Item 1.

Exhibit 32 CERTIFICATION PURSUANT TO 18 U.S.C SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 Each of the undersigned officers of Whitney Holding Corporation (the Company), in the capacities and on the dates indicated below, hereby certify pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, based on their knowledge, that: (1) (2) the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2007 (the Report) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Dated:August 9, 2007 By: /s/ William L. Marks William L. Marks Chairman of the Board and Chief Executive Officer Dated:August 9, 2007 By: /s/ Thomas L. Callicutt, Jr. Thomas L. Callicutt, Jr. Executive Vice President and Chief Financial Officer

Exhibit 10.1 AMERICAN SUPERCONDUCTOR CORPORATION 2007 STOCK INCENTIVE PLAN   1. Purpose The purpose of this 2007 Stock Incentive Plan (the “Plan”) of American Superconductor Corporation, a Delaware corporation (the “Company”), is to advance the interests of the Company’s stockholders by enhancing the Company’s ability to attract, retain and motivate persons who are expected to make important contributions to the Company and by providing such persons with equity ownership opportunities and performance-based incentives that are intended to align their interests with those of the Company’s stockholders. Except where the context otherwise requires, the term “Company” shall include any of the Company’s present or future parent or subsidiary corporations as defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”) and any other business venture (including, without limitation, joint venture or limited liability company) in which the Company has a controlling interest, as determined by the Board of Directors of the Company (the “Board”).   2. Eligibility to receive options, stock appreciation rights (“SARs”), restricted stock, restricted stock units (“RSUs”) and other stock-based awards (each, an “Award”) under the Plan. Each person who receives an Award under the Plan is deemed a “Participant”.   as it shall deem advisable. The Board may construe and interpret the terms of the Plan and any Award agreements entered into under the Plan. The Board may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency. All decisions by the Board shall be made in the Board’s sole discretion and shall be final and binding on all persons having or claiming any interest in the Plan or in any Award. No director or person acting pursuant to the authority delegated by the Board shall be liable for any action or determination relating to or under the Plan made in good faith. (subject to any limitations under the Plan) to employees or officers of the Company or any of its present or future subsidiary corporations and to exercise such other powers under the Plan as the Board may determine, provided that the Board shall fix the terms of the Awards to be granted by such officers (including the exercise price of such Awards, which may include a formula by which the exercise price will be determined) and the maximum number of shares subject to Awards that the officers may grant; provided further, however, that no officer shall be authorized to grant Awards to any “executive officer” of the Company (as defined by Rule 3b-7 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or to any “officer” of the Company (as defined by Rule 16a-1 under the Exchange Act).   (a) Number of Shares; Share Counting. (1) Authorized Number of Shares. Subject to adjustment under Section 9, Awards may be made under the Plan for up to 3,000,000 shares of common stock, $0.01 par value per share, of the Company (the “Common Stock”). Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares. (2) Share Counting. For purposes of counting the number of shares available for the grant of Awards under the Plan and under the sub-limits contained in Section 4(b)(2), (i) all shares of Common Stock covered by independent SARs shall be counted against the number of shares available for the grant of Awards; provided, however, that independent SARs that may be settled in cash only shall not be so counted; (ii) if any Award (A) expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or (B) results in any Common Stock not being issued (including as a result of an independent SAR that was settleable either in cash or in stock actually being settled in cash), the unused Common Stock covered by such Award shall again be available for the grant of Awards; provided, however, in the case of Incentive Stock Options (as hereinafter defined), the foregoing shall be subject to any limitations under the Code; and provided further, in the case of independent SARs, that the full number of shares subject to any stock-settled SAR shall be counted against the shares available under the Plan and against the sub-limits listed in the first clause of this Section regardless of the number of shares actually used to settle such SAR upon exercise; (iii) shares of Common Stock tendered to the Company by a Participant to (A) purchase shares of Common Stock upon the exercise of an Award or (B) satisfy tax withholding obligations (including shares retained from the Award creating the tax obligation) shall not be added back to the number of shares available for the future grant of Awards; and (iv) shares of Common Stock repurchased by the Company on the open market using the proceeds from the exercise of an Award shall not increase the number of shares available for future grant of Awards.   -2- (b) Sub-limits. Subject to adjustment under Section 9, the following sub-limits on the number of shares subject to Awards shall apply: (1) Section 162(m) Per-Participant Limit. The maximum number of shares of Common Stock with respect to which Awards may be granted to any Participant under the Plan shall be 1,000,000 per calendar year. For purposes of the foregoing limit, the combination of an Option in tandem with an SAR (as each is hereafter defined) shall be treated as a single Award. The per-Participant limit described in this Section 4(b)(1) shall be construed and applied consistently with Section 162(m) of the Code or any successor provision thereto, and the regulations thereunder (“Section 162(m)”). (2) Limit on Awards other than Options and SARS. The maximum number of shares with respect to which Awards other than Options and SARs may be granted shall be 600,000. (c) Substitute Awards. In connection with a merger or consolidation of an entity with the Company or the acquisition by the Company of property or stock of an entity, the Board may grant Awards in substitution for any options or other stock or stock-based awards granted by such entity or an affiliate thereof. Substitute Awards may be granted on such terms as the Board deems appropriate in the circumstances, notwithstanding any limitations on Awards contained in the Plan. Substitute Awards shall not count against the overall share limit set forth in Section 4(a)(1) or any sub-limits contained in the Plan, except as may be required by reason of Section 422 and related provisions of the Code.   5. Stock Options necessary or advisable. An Option which is not intended to be an Incentive Stock Option (as hereinafter defined) shall be designated a “Nonstatutory Stock Option”. (b) Incentive Stock Options. An Option that the Board intends to be an “incentive stock option” as defined in Section 422 of the Code (an “Incentive Stock Option”) shall only be granted to employees of the Company, any of the Section 424(e) or (f) of the Code, and any other entities the employees of which are eligible to receive Incentive Stock Options under the Code, and shall be subject to and shall be construed consistently with the requirements of Section 422 of the Code. The Company shall have no liability to a Participant, or any other party, if an Option (or any part thereof) that is intended to be an Incentive Stock Option is not an Incentive Stock Option or for any action taken by the Board, including without limitation the conversion of an Incentive Stock Option to a Nonstatutory Stock Option. (c) Exercise Price. The Board shall establish the exercise price of each Option and specify such exercise price in the applicable option agreement. The exercise price shall be not less than 100% of the Fair Market Value (as defined below) on the date the Option is granted;   -3- provided that if the Board approves the grant of an Option with an exercise price to be determined on a future date, the exercise price shall be not less than 100% of the Fair Market Value on such future date. (d) Duration of Options. Each Option shall be exercisable at such times and in excess of 10 years. (e) Exercise of Option. Options may be exercised by delivery to the Company of a in full as specified in Section 5(f) for the number of shares for which the Option is exercised. (f) Payment Upon Exercise. Common Stock purchased upon the exercise of an Option acquired directly from the Company, was owned by the Participant at least six months prior to such delivery and (iii) such Common Stock is not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements; (4) to the extent permitted by applicable law and by the Board and provided for in the option agreement, by (i) delivery of a promissory note of the Participant to the Company on terms determined by the Board, or (ii) payment of such other lawful consideration as the Board may determine; or (g) Limitation on Repricing. Unless such action is approved by the Company’s Section 9) and (2) the Board may not cancel any outstanding Option (whether or not granted under the Plan) and grant in substitution therefor new Awards under the Plan covering the same or a different number of shares of Common Stock and having an exercise price per share lower than the then-current exercise price per share of the cancelled Option.   -4- holder, upon exercise, to receive an amount in cash or Common Stock or a combination thereof (such form to be determined by the Board) determined in whole or in part by reference to appreciation, from and after the date of grant, in the fair market value of a share of Common Stock. SARs may be based solely on appreciation in the fair market value of Common Stock or on a comparison of such appreciation with some other measure of market growth such as (but not limited to) appreciation in a recognized market index. The date as of which such appreciation or other measure is determined shall be the exercise date unless another date is specified by the Board in the SAR Award. (b) Grants. SARs may be granted in tandem with, or independently of, Options (1) Tandem Awards. When SARs are expressly granted in tandem with Options, (i) the SAR will be exercisable only at such time or times, and to the extent, that the related Option is exercisable (except to the extent designated by the Board in connection with a Reorganization Event) and will be exercisable in accordance with the procedure required for exercise of the related Option; (ii) the SAR will terminate and no longer be exercisable upon the termination or exercise of the related Option, except to the extent designated by the Board in connection with a Reorganization Event and except that a SAR granted with respect to less than the full number of shares covered by an Option will not be reduced until the number of shares as to which the related Option has been exercised or has terminated exceeds the number of shares not covered by the SAR; (iii) the Option will terminate and no longer be exercisable upon the exercise of the related SAR; and (iv) the SAR will be transferable only with the related Option. (2) Independent SARs. A SAR not expressly granted in tandem with an Option will become exercisable at such time or times, and on such conditions, as the Board may specify in the SAR Award. (c) Exercise Price. The Board shall establish the exercise price of each SAR and specify it in the applicable SAR agreement. The exercise price shall not be less than 100% of the Fair Market Value on the date the SAR is granted; provided that if the Board approves the grant of a SAR with an exercise price to be determined on a future date, the exercise price shall be not less than 100% of the Fair Market Value on such future date. (d) Duration of SARs. Each SAR shall be exercisable at such times and subject to such terms and conditions as the Board may specify in the applicable SAR agreement; provided, however, that no SAR will be granted with a term in excess of 10 years. (e) Exercise of SARs. SARs may be exercised by delivery to the Company of a notice (including electronic notice) approved by the Board, together with any other documents required by the Board. (f) Limitation on Repricing. Unless such action is approved by the Company’s stockholders: (1) no outstanding SAR granted under the Plan may be amended to provide a   -5- exercise price per share that is lower than the then-current exercise price per share of such outstanding SAR (other than adjustments pursuant to Section 9) and (2) the Board may not cancel any outstanding SAR (whether or not granted under the Plan) and grant in substitution therefor new Awards under the Plan covering the same or a different number of shares of Common Stock and having a exercise price per share lower than the then-current exercise price per share of the cancelled SAR.   the recipient to receive shares of Common Stock or cash to be delivered at the time such Award vests (“Restricted Stock Units”) (Restricted Stock and Restricted Stock Units are each referred to herein as a “Restricted Stock Award”). (c) Additional Provisions Relating to Restricted Stock. (1) Dividends. Participants holding shares of Restricted Stock will be entitled to all ordinary cash dividends paid with respect to such shares, unless otherwise provided by the Board. Unless otherwise provided by the Board, if any dividends or distributions are paid in shares, or consist of a dividend or the shares, cash or other property will be subject to the same restrictions on transferability and forfeitability as the shares of Restricted Stock with respect to which they were paid. Each dividend payment will be made no later than the end of the calendar year in which the dividends are paid to shareholders of that class of stock or, if later, the 15th day of the third month following the date the dividends are paid to shareholders of that class of stock. (2) Stock Certificates. Any stock certificates issued in respect of a Restricted   -6- (3) Additional Provisions Relating to Restricted Stock Units. (a) Settlement. Upon the vesting of and/or lapsing of any other restrictions (i.e., settlement) with respect to each Restricted Stock Unit, the Participant shall be entitled to receive from the Company one share of Common Stock or an amount of cash equal to the Fair Market Value of one share of Common Stock, as provided in the applicable Award agreement. The Board may, in its discretion, provide that settlement of Restricted Stock Units shall be deferred, on a mandatory basis or at the election of the Participant. (b) Voting Rights. A Participant shall have no voting rights with respect to any Restricted Stock Units. (c) Dividend Equivalents. To the extent provided by the Board, in its sole discretion, a grant of Restricted Stock Units may provide Participants with the right to receive an amount equal to any dividends or other distributions declared and paid on an equal number of outstanding shares of Common Stock (“Dividend Equivalents”). Dividend Equivalents may be paid currently or credited to an account for the Participants, may be settled in cash and/or shares of Common Stock and may be subject to the same restrictions on transfer and forfeitability as the Restricted Stock Units with respect to which paid, as determined by the Board in its sole discretion, subject in each case to such terms and conditions as the Board shall establish, in each case to be set forth in the applicable Award agreement.   Stock-Based Awards”). Such Other Stock-Based Awards shall also be available as a form of payment in the settlement of other Awards granted under the Plan or as payment in lieu of compensation to which a Participant is otherwise entitled. Other Stock-Based Awards may be paid in shares of Common Stock or cash, as the Board shall determine. Subject to the provisions of the Plan, the Board shall determine the conditions of each Other Stock-Based Awards, including any purchase price applicable thereto.   dividend or distribution to holders of Common Stock other than an ordinary cash dividend, (i) the number and class of securities available under this Plan, (ii) the sub-limits and share counting rules set forth in Section 4(a) and Section 4(b), (iii) the number and class of securities and exercise price per share of each outstanding Option, (iv) the share- and per-share provisions and the exercise price of each SAR, (v) the number of shares subject to and the repurchase price per share subject to each outstanding Restricted Stock Award and (vi) the share- and per-share-related provisions and the purchase price, if any, of each outstanding Other Stock-Based Award, shall be equitably adjusted by the Company (or substituted Awards may be made, if applicable) in the manner determined by the Board. Without limiting the generality of the foregoing, in the event the Company effects a split   -7- of the Common Stock by means of a stock dividend and the exercise price of and the number of shares subject to an outstanding Option are adjusted as of the date of the distribution of the dividend (rather than as of the record date for such dividend), then an optionee who exercises an Option between the record date and the distribution date for such stock dividend shall be entitled to receive, on the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such stock dividend. Awards. In connection with a Reorganization Event, the Board may take any one or more of the following actions as to all or any (or any portion of) outstanding Awards other than Restricted Stock Awards on such terms as the Board determines: (i) provide that Awards shall be assumed, or substantially equivalent Awards shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (ii) upon written notice to a Participant, provide that the Participant’s unexercised Awards will terminate immediately prior to the consummation of such Reorganization Event unless exercised by the Participant within a specified period following the date of such notice, (iii) provide that outstanding Awards shall become exercisable, realizable, or deliverable, or restrictions applicable to an Award shall lapse, in whole or in part prior to or upon such Reorganization Event, (iv) in the event of a Reorganization Event under the terms of which holders of Common Stock will receive upon consummation thereof a cash payment for each share surrendered in the Reorganization Event (the “Acquisition Price”), make or provide for a cash payment to a Participant equal to the excess, if any, of (A) the Acquisition Price times the number of shares of Common Stock subject to the Participant’s Awards (to the extent the exercise price does not exceed the Acquisition Price) over (B) the aggregate exercise price of all such outstanding Awards and any applicable tax withholdings, in exchange for the termination of such Awards, (v) provide that, in connection with a liquidation or dissolution of the Company, Awards shall convert into the right to receive liquidation proceeds (if applicable, net of the exercise price thereof and any applicable tax withholdings) and (vi) any combination of the foregoing. In taking any of the actions permitted under this Section 9(b), the Board shall not be obligated by the Plan to treat all Awards, all Awards held by a Participant, or all Awards of the same type, identically. holders   -8- were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Common Stock); provided, however, that if the consideration received as a result of the Reorganization Event is not solely common stock of the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the exercise of Options to consist solely of common stock of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in value (as determined by the Board) to the per share consideration received by holders of outstanding shares of Common Stock as a result of the Reorganization Event. successor and shall, unless the Board determines otherwise, apply to the cash, securities or other property which the Common Stock was converted into or exchanged for pursuant to such Reorganization Event in the same manner and to the same extent as they applied to the Common Stock subject to such Restricted Stock Award. Upon the occurrence of a Reorganization Event involving the liquidation or dissolution of the Company, except to the extent specifically provided to the contrary in the instrument evidencing any Restricted Stock Award or any other agreement between a Participant and the Company, all restrictions and conditions on all Restricted Stock Awards then outstanding shall automatically be deemed terminated or satisfied.   (a) Transferability of Awards. Awards shall not be sold, assigned, transferred, pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution or, other than in the case of an Incentive Stock Option, pursuant to a qualified domestic relations order, and, during the life of the Participant, shall be exercisable only by the Participant; provided, however, that the Board may permit or provide in an Award for the gratuitous transfer of the Award by the Participant to or for the benefit of any immediate family member, family trust or other entity established for the benefit of the Participant and/or an immediate family member thereof if, with respect to such proposed transferee, the Company would be eligible to use a Form S-8 for the registration of the sale of the Common Stock subject to such Award under the Securities Act of 1933, as amended; provided, further, that the Company shall not be required to recognize any such transfer until such time as the Participant and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument in form and substance satisfactory to the Company confirming that such transferee shall be bound by all of the terms and conditions of the Award. References to a Participant, to the extent relevant in the context, shall include references to authorized transferees. electronic or otherwise) as the Board shall determine. Each Award may contain   -9- uniformly. the disability, death, termination or other cessation of employment, authorized leave of absence or other change in the employment or other status of a (e) Withholding. The Participant must satisfy all applicable federal, state, and local or other income and employment tax withholding obligations before the Company will deliver stock certificates or otherwise recognize ownership of Common Stock under an Award. The Company may decide to satisfy the withholding obligations through additional withholding on salary or wages. If the Company elects not to or cannot withhold from other compensation, the Participant must pay the Company the full amount, if any, required for withholding or have a broker tender to the Company cash equal to the withholding obligations. Payment of withholding obligations is due before the Company will issue any shares on exercise or release from forfeiture of an Award or, if the Company so requires, at the same time as is payment of the exercise price unless the Company determines otherwise. If provided for in an Award or approved by the Board in its sole discretion, a Participant may satisfy such tax obligations in whole or repurchase, forfeiture, unfulfilled vesting or other similar requirements. (f) Amendment of Award. The Board may amend, modify or terminate any outstanding Award, including but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise or realization, and converting an Incentive Stock Option to a Nonstatutory Stock Option, provided that the Participant’s consent to such action shall be required unless (i) the Board determines that the action, taking into account any related action, would not materially and adversely affect the Participant’s rights under the Plan or (ii) the change is permitted under Section 9 hereof. or regulations.   -10- (h) Acceleration. The Board may at any time provide that any Award shall become immediately exercisable in full or in part, free of some or all restrictions or conditions, or otherwise realizable in full or in part, as the case may be. (1) Grants. Restricted Stock Awards and Other Stock-Based Awards under the Plan Section 10(i) (“Performance Awards”), subject to the limit in Section 4(b) on shares covered by such grants. Covered Employees, references to the Board or to a Committee shall be deemed to be references to such Committee or subcommittee. “Covered Employee” shall mean (3) Performance Measures. For any Award that is intended to qualify as combination of the following: net income, earnings before or after discontinued operations, interest, taxes, depreciation and/or amortization, operating profit before or after discontinued operations and/or taxes, sales, sales growth, earnings growth, cash flow or cash position, gross margins, stock price, market share, return on sales, assets, equity or investment, improvement of financial ratings, achievement of balance sheet or income statement objectives or total shareholder return, and may be absolute in their terms or measured against or in relationship to other companies comparably, similarly or otherwise situated. The Committee may specify that such performance measures shall be adjusted to exclude any one or more of (i) extraordinary items, (ii) gains or losses on the dispositions of discontinued operations, (iii) the cumulative effects of changes in accounting principles, (iv) the writedown of any asset, and (v) charges for restructuring and rationalization programs. Such performance measures: (i) may (4) Adjustments. Notwithstanding any provision of the Plan, with respect to any Shares payable   -11- pursuant to such Award, and the Committee may not waive the achievement of the applicable performance measures except in the case of the death or disability of the Participant or a change in control of the Company. (5) Other. The Committee shall have the power to impose such other restrictions   11. Miscellaneous applicable Award. Award until becoming the record holder of such shares. the Plan is approved by the Company’s stockholders (the “Effective Date”). No Awards shall be granted under the Plan after the expiration of 10 years from the Effective Date, but Awards previously granted may extend beyond that date. portion thereof at any time provided that (i) to the extent required by Section 162(m) (including the vote required under Section 162(m)); (ii) no amendment that would require stockholder approval under the rules of the NASDAQ Stock Market (“NASDAQ”) may be made effective unless and until such amendment shall have been approved by the Company’s stockholders; and (iii) if the NASDAQ amends its corporate governance rules so that such rules no longer require stockholder approval of “material amendments” to equity compensation plans, then, from and after the effective date of such amendment to the NASDAQ rules, no amendment to the Plan (A) materially increasing the number of shares authorized under the Plan (other than pursuant to Section 4(c) or 9), (B) expanding the types of Awards that may be granted under the Plan, or (C) materially expanding the class of participants eligible to participate in the Plan shall be effective unless stockholder approval is obtained. In addition, if at any time the approval of the Company’s stockholders is required as to any other modification or amendment under Section 422 of the Code or any successor provision with respect to Incentive Stock Options, the Board may not effect such modification or amendment without such approval. Unless otherwise specified in the amendment, any amendment to the Plan adopted in accordance with this Section 11(d) shall   -12- apply to, and be binding on the holders of, all Awards outstanding under the Plan at the time the amendment is adopted, provided the Board determines that such amendment does not materially and adversely affect the rights of Participants under the Plan. No Award shall be made that is conditioned upon stockholder approval of any amendment to the Plan. (e) Provisions for Foreign Participants. The Board may modify Awards granted to Participants who are foreign nationals or employed outside the United States or establish subplans or procedures under the Plan to recognize differences in laws, rules, regulations or customs of such foreign jurisdictions with respect (f) Compliance with Code Section 409A. No Award shall provide for deferral of intended to comply with Section 409A of the Code. The Company shall have no liability to a Participant, or any other party, if an Award that is intended to be exempt from, or compliant with, Section 409A is not so exempt or compliant or for any action taken by the Board. Delaware, without regard to any applicable conflicts of law principles.   -13-

EXHIBIT 2 JOINT FILING AGREEMENT The undersigned hereby agree to the joint filing of Amendment No. 1 to the Schedule 13D to which this Agreement is attached. Dated: April 8, 2013 DISCOVERY GROUP I, LLC for itself and as general partner of DISCOVERY EQUITY PARTNERS, L.P. By Michael R. Murphy* Michael R. Murphy Managing Member Daniel J. Donoghue* Daniel J. Donoghue Michael R. Murphy* Michael R. Murphy *By: /s/ Mark Buckley Mark Buckley Attorney-in-Fact for Daniel J. Donoghue Attorney-in-Fact for Michael R. Murphy

EXHIBIT 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Annual Report of BLACKWATER MIDSTREAM CORP. (the “Company”) on Form 10-K for the year ended March31, 2010 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Michael D. Suder, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: 1.The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2.The information contained in this Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date:June 28, 2010 By: /S/ MICHAEL D. SUDER Michael D. Suder Chief Executive Officer

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): July 30, 2013 WESTFIELD FINANCIAL, INC. (Exact name of registrant as specified in its charter) Massachusetts (State or other jurisdiction of incorporation or organization) 001-16767 (Commission File Number) 73-1627673 (I.R.S. Employer Identification No.) 141 Elm Street Westfield, Massachusetts 01085 (Address of principal executive offices, zip code) Registrant’s telephone number, including area code: (413)568-1911 Not Applicable (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: oWritten communications pursuant to Rule425 under the Securities Act (17 CFR 230.425) oSoliciting material pursuant to Rule14a-12 under the Exchange Act (17 CFR 240.14a-12) oPre-commencement communications pursuant to Rule14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) oPre-commencement communications pursuant to Rule13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 7.01.Regulation FD Disclosure. On July 30, 2013, Westfield Financial, Inc. (the “Company”) will conduct an investor presentation at the Keefe, Bruyette and Woods, Inc. 14th Annual Community Bank Investor Conference to be held in New York on July 30, 2013 and July 31, 2013.The slide show for the presentation is attached to this report as Exhibit 99.1. The information in this Item 7.01 and the exhibit attached hereto will not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”), or otherwise subject to the liabilities of such section, nor will such information or exhibit be deemed incorporated by reference in any filing under the Securities Act of 1933 or the Exchange Act, except as may be expressly set forth by specific reference in such filing. Item 9.01. Financial Statements and Exhibits. (a) Not applicable. (b) Not applicable. (c) Not applicable. (d) Exhibits. The exhibits required by this item are set forth on the ExhibitIndex attached hereto. Exhibit Number Description Investor Presentation Materials dated July 30- July 31, 2013 for Westfield Financial, Inc. 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. WESTFIELD FINANCIAL, INC. Date: July 30, 2013 By: /s/ Leo R. Sagan, Jr. Leo R. Sagan, Jr. Chief Financial Officer EXHIBIT INDEX Exhibit Number Description Investor Presentation Materials dated July 30 – July 31, 2013 for Westfield Financial, Inc.

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 8, 2009 NFINANSE INC. (Exact name of registrant specified in its charter) Nevada 000-33389 65-1071956 (State or other jurisdiction of incorporation) (Commission File Number) (I.R.S. Employer Identification No.) 3923 Coconut Palm Drive, Suite 107, Tampa, Florida 33619 (Address of principal executive offices) (Zip Code) Registrant’s telephone, including area code: (813) 367-4400 Not applicable. (Former name and former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions (see General Instruction A.2. below): □Written communications pursuant to Rule 425 under the Securities Act (17 CFR □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)) DB1/63780320.1 Item 4.01.Changes in Registrant’s Certifying Accountant. Dismissal of independent registered public accounting firm and appointment of new independent registered public accounting firm: On September 30, 2009, the Audit Committee of the Board of Directors (the “Board”) of nFinanSe Inc. (the “Company”) and the Board,in its entirety,approved the dismissal of Kingery & Crouse, P.A. (“Kingery”) as the Company’s independent registered public accounting firm for the year ending January 2, 2010 and the engagement of Baumann, Raymondo & Company PA (“Baumann”) as the Company’s independent registered public accounting firm for the year ending January 2, 2010 subject to the completion of their customary client acceptance procedures. The dismissal of Kingery was effective as of October 8, 2009. The report of Kingery on the Company’s consolidated financial statements for the fiscal years ending December 29, 2007 and January 3, 2009 contained no adverse opinion or disclaimer of opinion but was modified to include an explanatory paragraph related to uncertainties about the Company’s ability to continue as a going concern. During each of the two fiscal years ended December 29, 2007 and January 3, 2009 and through October 8, 2009, (i) there were no disagreements with Kingery on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to the satisfaction of Kingery, would have caused Kingery to make reference to the subject matter of the disagreements in connection with its reports on the financial statements for such fiscal years, and (ii) there were no “reportable events” as defined in Item 304(a)(1)(v) of Regulation S-K. During each of the two fiscal years in the period ended December 29, 2007 and January 3, 2009, neither the Company nor anyone on its behalf consulted with Baumann with respect to either (i) the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on the Company’s consolidated financial statements, and no written report or oral advice was provided by Baumann to the Company that Baumann concluded was an important factor considered by the Company in reaching a decision as to the accounting, auditing or financial reporting issue, or (ii) any matter that was either the subject of a disagreement (as defined in Item 304(a)(1)(iv) ofRegulation S-K and the related instructions to that Item) or a reportable event (as described in Item 304(a)(1)(v) of Regulation S-K). The Company provided Kingery with a copy of this Current Report on Form 8-K prior to its filing with the Securities and Exchange Commission (the “SEC”). The Company requested that Kingery furnish the Company with a letter addressed to the SEC stating whether or not Kingery agrees with the above statements that are related to Kingery. A copy of the letter from Kingery, dated October 12, 2009, is attached hereto as Exhibit Item 9.01.Financial Statements and Exhibits. (d) Exhibits. Exhibit Number Description 16.1 Letter to the SEC from Kingery. DB1/63780320.1 -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. NFINANSE INC. Date: October 12, 2009 By: /s/ JERRY R. WELCH Name:Jerry R. Welch Title:Chief Executive Officer DB1/63780320.1 -3- EXHIBIT

EXHIBIT 1 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of the Schedule 13G (and any further amendment filed by them) with respect to the common stock, par value $0.01 per share, of Viasystems Group, Inc., a Delaware corporation. Date:January 10, 2013 HICKS, MUSE FUND III INCORPORATED By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HICKS MUSE GP PARTNERS III, L.P. By: Hicks, Muse Fund III Incorporated, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HM3/GP PARTNERS, L.P. By: Hicks, Muse GP Partners III, L.P., its general partner By: Hicks, Muse Fund III Incorporated, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HICKS, MUSE, TATE & FURST EQUITY FUND III,L.P. By: HM3/GP Partners, L.P., its general partner By: Hicks, Muse GP Partners III, L.P., its general partner By: Hicks, Muse Fund III Incorporated, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HM3 COINVESTORS, L.P. By: Hicks, Muse GP Partners III, L.P., its general partner By: Hicks, Muse Fund III Incorporated, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HICKS, MUSE (1999) FUND IV, LLC By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HICKS, MUSE GP (1999) PARTNERS IV, L.P. By: Hicks, Muse (1999) Fund IV, LLC, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HM4/GP (1999) PARTNERS, L.P. By: Hicks, Muse GP (1999) Partners IV, L.P., its general partner By: Hicks, Muse (1999) Fund IV, LLC, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HMTF EQUITY FUND IV (1999), L.P. By: HM4/GP (1999) Partners, L.P., its general partner By: Hicks, Muse GP (1999) Partners IV, L.P., its general partner By: Hicks, Muse (1999) Fund IV, LLC, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HMTF PRIVATE EQUITY FUND IV (1999), L.P. By: HM4/GP (1999) Partners, L.P., its general partner By: Hicks, Muse GP (1999) Partners IV, L.P., its general partner By: Hicks, Muse (1999) Fund IV, LLC, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HM 4-P (1999) COINVESTORS, L.P. By: Hicks, Muse GP (1999) Partners IV, L.P., its general partner By: Hicks, Muse (1999) Fund IV, LLC, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President 2 HM 4-EQ (1999) COINVESTORS, L.P. By: Hicks, Muse GP (1999) Partners IV, L.P., its general partner By: Hicks, Muse (1999) Fund IV, LLC, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HM FUND IV CAYMAN, LLC By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HM GP PARTNERS IV CAYMAN, L.P. By: HM Fund IV Cayman, LLC, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HM EQUITY FUND IV/GP PARTNERS (1999), C.V. By: HM GP Partners IV Cayman, L.P., its general partner By: HM Fund IV Cayman, LLC, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President HICKS, MUSE PG - IV (1999), C.V. By: HM Equity Fund IV/GP Partners (1999), C.V., its general partner By: HM GP Partners IV Cayman, L.P., its general partner By: HM Fund IV Cayman, LLC, its general partner By: /s/David W. Knickel Name: David W. Knickel Title: Vice President EDWARD HERRING /s/Edward Herring 3 JOHN R. MUSE /s/John R. Muse ANDREW S. ROSEN /s/Andrew S. Rosen 4

Name: Council Decision (EU) 2019/853 of 21 May 2019 determining the composition of the European Economic and Social Committee Type: Decision Subject Matter: EU institutions and European civil service; economic geography Date Published: 2019-05-27 27.5.2019 EN Official Journal of the European Union L 139/15 COUNCIL DECISION (EU) 2019/853 of 21 May 2019 determining the composition of the European Economic and Social Committee THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 301 thereof, Having regard to the proposal from the European Commission, Whereas: (1) Article 300 of the Treaty sets out the rules for the composition of the European Economic and Social Committee. (2) Council Decision (EU) 2015/1157 (1) adapted the composition of the European Economic and Social Committee following the accession of Croatia. The number of members for each of Estonia, Cyprus and Luxembourg was reduced by one in order to address the discrepancy between the maximum number of members of the European Economic and Social Committee set out in the first paragraph of Article 301 of the Treaty and the number of members of the European Economic and Social Committee following the accession of Croatia. (3) The preamble to Decision (EU) 2015/1157 states that that Decision is to be revised in time for the mandate of the European Economic and Social Committee starting in 2020. (4) On 18 September 2018, the European Economic and Social Committee adopted recommendations to the Commission and to the Council on its future composition. (5) The current balance in the composition of the European Economic and Social Committee should as far as possible be maintained as it is the result of successive Intergovernmental Conferences. (6) The withdrawal of the United Kingdom from the Union would result in 24 vacant seats in the European Economic and Social Committee. Therefore, the balance in the allocation of seats that existed before the adoption of Decision (EU) 2015/1157 should be restored, HAS ADOPTED THIS DECISION: Article 1 1. The number of members of the European Economic and Social Committee shall be as follows: Belgium 12 Bulgaria 12 Czechia 12 Denmark 9 Germany 24 Estonia 7 Ireland 9 Greece 12 Spain 21 France 24 Croatia 9 Italy 24 Cyprus 6 Latvia 7 Lithuania 9 Luxembourg 6 Hungary 12 Malta 5 Netherlands 12 Austria 12 Poland 21 Portugal 12 Romania 15 Slovenia 7 Slovakia 9 Finland 9 Sweden 12. 2. In the event that the United Kingdom is still a Member State of the Union at the date of application of this Decision, the number of members of the European Economic and Social Committee shall be that provided for in Article 1 of Decision (EU) 2015/1157 until the withdrawal of the United Kingdom from the Union becomes legally effective. From the date that the United Kingdom's withdrawal from the Union becomes legally effective, the number of members of the European Economic and Social Committee shall be that provided for in paragraph 1 of this Article. Article 2 This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 21 September 2020. Done at Brussels, 21 May 2019. For the Council The President G. CIAMBA (1) Council Decision (EU) 2015/1157 of 14 July 2015 determining the composition of the European Economic and Social Committee (OJ L 187, 15.7.2015, p. 28).

Filed pursuant to Rule 424(b)(5) Registration No. 333-161903 PROSPECTUS SUPPLEMENT (To Prospectus dated September 14, 2009) 8,000,000 Shares PARKERVISION, INC. Common Stock $2.00 per share · ParkerVision, Inc. is offering 8,000,000 shares of common stock. · Trading symbol:NASDAQ Global Market − PRKR. · The last reported sale price of our common stock on November 9, 2009 was $2.55 per share. Investing in our securities involves a high degree of risk.See the section entitled “Risk Factors” appearing on page S-6 of this prospectus supplement and elsewhere in this prospectus supplement and the accompanying prospectus for a discussion of information that should be considered in connection with an investment in our securities. Per Share Total Public offering price $ $ 16,000,000 Underwriting discount (1) $ $ Proceeds, before expenses, to ParkerVision, Inc. $ $ We have also agreed to reimburse the underwriter for certain out of pocket expenses incurred by it up to an aggregate of $150,000 with respect to this offering. The underwriter expects to deliver the shares against payment on or about November 16, 2009. Neither the Securities and Exchange Commission nor any state securities commission has approved of anyone’s investment in these securities or determined if this prospectus supplement and the accompanying prospectus are truthful or complete. Any representation to the contrary is a criminal offense. Piper Jaffray The date of this prospectus supplement is November 10, 2009. TABLE OF CONTENTS PROSPECTUS SUPPLEMENT PROSPECTUS SUMMARY S-1 RISK FACTORS S-6 NOTE ON FORWARD-LOOKING STATEMENTS S-7 USE OF PROCEEDS S-7 CAPITALIZATION S-8 DILUTION S-9 DESCRIPTION OF COMMON STOCK S-10 UNDERWRITING S-10 LEGAL MATTERS S-12 EXPERTS S-12 WHERE YOU CAN FIND MORE INFORMATION S-12 ACCOMPANYING PROSPECTUS PROSPECTUS SUMMARY 1 RISK FACTORS 3 NOTE ON FORWARD-LOOKING STATEMENTS 4 USE OF PROCEEDS 4 RATIO OF EARNINGS TO FIXED CHARGES 4 DESCRIPTION OF CAPITAL STOCK 5 DESCRIPTION OF WARRANTS 8 DESCRIPTION OF DEBT SECURITIES 9 PLAN OF DISTRIBUTION OF SHELF SECURITIES 16 LEGAL MATTERS 18 INDEPENDENT REGISTERED CERTIFIED PUBLIC ACCOUNTING FIRM 18 WHERE YOU CAN FIND MORE INFORMATION 18 You should rely only on the information contained or incorporated by reference in this prospectus supplement and the accompanying prospectus.We have not authorized anyone to provide you with different information.We are not making an offer of these securities in any state or jurisdiction where the offer is not permitted. i PROSPECTUS SUMMARY About This Prospectus Supplement This prospectus supplement and the accompanying prospectus are part of a registration statement on Form S-3 (Registration No. 333-161903) that we filed with the Securities and Exchange Commission using a “shelf” registration process.Under this “shelf” registration process, we may, from time to time, sell or issue any of the combination of securities described in the accompanying prospectus in one or more offerings with a maximum aggregate offering price of up to $50,000,000.The accompanying prospectus provides you with a general description of us and the securities we may offer, some of which may not apply to this offering.Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering.A prospectus supplement may also add, update or change information contained in the accompanying prospectus. This prospectus supplement provides specific details regarding this offering of shares of common stock, including the purchase price per share.To the extent there is a conflict between the information contained in this prospectus supplement and the accompanying prospectus, you should rely on the information in this prospectus supplement.This prospectus supplement, the accompanying prospectus and the documents we incorporate by reference herein and therein include important information about us and our common stock, and other information you should know before investing.You should read both this prospectus supplement and the accompanying prospectus, together with the additional information described below under the heading “Where You Can Find More Information.” You should not assume that the information appearing in this prospectus supplement or the accompanying prospectus is accurate as of any date other than the date on the front cover of the respective documents.You should not assume that the information contained in the documents incorporated by reference in this prospectus supplement or the accompanying prospectus is accurate as of any date other than the respective dates of those documents.Our business, financial condition, results of operations, and prospects may have changed since that date. References in this prospectus supplement to “ParkerVision,” “we,” “us” and “our” refer to ParkerVision, Inc., a Florida corporation, and its subsidiary. Company Summary General We are in the business of designing, developing and selling our proprietary radio frequency (“RF”) technologies and products for use in semiconductor circuits for wireless communication products.Our business includes licensing our intellectual property for incorporation into wireless products designed by our customers.We have also entered into an agreement for the joint development and marketing of wireless radio modules that incorporate our technologies.Under this agreement, we will supply unpackaged integrated circuits that will be manufactured for us, based on our designs, under agreements with various semiconductor foundries.In addition, our business may include, from time to time, providing engineering consulting and design services to our customers, for a negotiated fee, to assist them in developing products incorporating our technologies.We are primarily focused on incorporating our technologies into mobile handsets, but our technologies are applicable to other wireless products that are related to networks serving mobile handsets such as data cards, pico cells, and femtocells.Our technology can also be applied to non-cellular radio applications such as military radios. S-1 We were incorporated under the laws of the State of Florida on August 22, 1989.Our executive offices are located at 7915 Baymeadows Way, Suite 400, Jacksonville, Florida 32256.Our telephone number is (904) 737-1367. Recent Events On October 26, 2009, we successfully delivered sample 3G mobile handsets incorporating our d2p™ integrated circuits to one of our customers, a commercial chipset producer. The performance of these sample handsets was tested, verified and accepted by the customer, a licensee of our d2p and d2d™ technologies.Our d2p and d2d technologies are discussed more fully below. The sample handsets were assembled for the purpose of verifying the d2p technology in working mobile handset implementations, testing the technology in actual network operation, and creating sales samples for handset OEM/ODMs who purchase chipsets from our customer. The handsets met all relevant industry standards and passed a series of tests that verify operational performance of the hardware when deployed on mobile phone networks. The customer verified that the d2p transmit chain achieved power consumption savings at all points along the RF transmit power curve when compared against the mass produced transmit chain that d2p replaced in the mobile phone reference design. The customer also determined that the power savings achieved by the sample handsets incorporating the d2p technology exceeded their own internal expectations for the initial mass production run of d2p chips. Our customer is a global supplier of chipsets that support 2G, 2.5G and 3G mobile standards with engineering design and sales locations in both North America and Asia. This customer designs and supplies chipsets and related handset reference designs, predominantly to ODMs, for incorporation into mobile handsets and reported three of the top five handset manufacturers among its customer base. The name of our customer remains confidential in accordance with the terms of our licensing agreement with them.We refer herein to the customer as our “Confidential Licensee.” Development of Our Business In 2005, we began educating prospective customers about the benefits of our technologies, with a primary focus on our RF transmit, or d2p, technology and its unique ability to address certain high-priority market needs related to mobile handset applications.In 2006, we completed our first d2p integrated circuit (“IC”) which embodied many of the advancements of our technology and enabled us to begin demonstrating partially-integrated prototypes.Throughout 2006, 2007 and 2008, we continued to further advance our prototype ICs and increased the level of prototype integration while cultivating potential customer relationships.Our sales-related activities during this three-year period included prototype demonstrations of our d2p platform, support of in-depth technical due-diligence by prospective customers, analysis of prospective customer product requirements, delivery of initial proposals and terms, and ultimately, negotiations of proposed business relationships. When we targeted the cellular industry in 2005, our initial target customer base was limited to the top tier mobile handset manufacturers.However, in 2006 and 2007, mobile handset manufacturers were shifting RF innovation and developments to their chipset providers.Accordingly, we expanded our target customer base to include not only the mobile handset manufacturers, but also their component suppliers. In 2007, we entered into licensing agreements with two customers, ITT Corporation (“ITT”) and the Confidential Licensee.During 2008, our product development efforts were largely focused on advancing our ICs from prototype to production-ready samples for our customers.In addition, we delivered a development/demonstration platform to ITT for their use and, late in 2008, we delivered production-ready d2p silicon samples and reference designs to our Confidential Licensee.The delivered samples met or exceeded all critical functional and performance requirements under our agreement.During 2009, we continued to work with our Confidential Licensee to prepare for volume production, including such activities as packaging design and production test development.We also worked cooperatively with this customer to implement the d2p integrated circuits into sample handsets, as more fully described in the section entitled “Recent Events.”Under the terms of our licensing agreements with both ITT and the Confidential Licensee, we will be paid royalties on a per unit basis for products sold that incorporate our licensed intellectual property.To date, we have not earned any royalties from these two customers as they have not yet commenced shipments of products incorporating our technologies. S-2 On December 4, 2008, we entered into a Product and Market Development Agreement (the “LGI Agreement”) with LG Innotek Co., Ltd. (“LGI”), a division of the LG Group.Under the terms of the LGI Agreement, we are working cooperatively with LGI to develop and market RF modules that incorporate our technologies for use in mobile handset and data card applications.Under this agreement, we will supply LGI with tested, unpackaged integrated circuits under a supply agreement, the terms of which will be finalized as part of the development plan with LGI.The modules are being designed for commercial HEDGE applications.HEDGE is an acronym for applications that incorporate support for 2G, 2.5G and 3G waveform standards including GSM, EDGE, WCDMA, and HSPA. Our ability to generate revenues sufficient to offset costs is subject to our ability to successfully support our customers in completing their initial product designs and our ability to secure a reasonable market share through additional product offerings with our current customers and/or the addition of new customers. Although our primary target market is the mobile handset industry, we have also explored potential relationships outside this target market to the extent that the requirements of the prospective customers are in concert with the needs of our primary target market.This exploration resulted in our licensing agreement with ITT in 2007.We are working with ITT on a number of product initiatives for their customers.These efforts recently resulted in the award, to ITT, of a government contract for the integration of our d2p integrated circuits into an existing highly-integrated transceiver radio platform for purposes of product evaluation.We were named as a subcontractor to assist ITT in this integration process and received from ITT a purchase order for approximately $130,000 for this purpose. We believe our technology has substantial advantages over competing technologies, especially in the third generation, or 3G, mobile handset market and generations that are evolving beyond 3G, such as 4G mobile handset standards and applications. Technology and Products Our wireless technologies represent unique, proprietary methods for processing RF waveforms in wireless applications.The technology applies to the transmit (baseband data to RF carrier signal) and receive (RF carrier signal to baseband data) functions of a radio transceiver.The transmit portion of the technology is called Direct2Power™, or d2p, and enables the transformation of a digital baseband signal to an RF carrier waveform, at the desired power output level, in a single unified operation.The receiver portion of the technology is called Direct2Data™, or d2d, and enables the direct conversion of an RF carrier to baseband data signal.Although our primary sales efforts were focused on commercialization of our d2p technology solutions, both of the agreements with customers in the commercial handset market contemplate incorporation of our d2d technology as well. S-3 We have completed a number of engineering prototypes of our d2p-based ICs targeted at mobile handset applications.The ICs which incorporate the core RF technology were produced using a Silicon Germanium (“SiGe”) process through a fabrication relationship with IBM Microelectronics (“IBM”).The digital engine that controls our RF transmit IC and interfaces to the mobile phone baseband processor was produced using a CMOS semiconductor process through another third-party fabrication relationship.These ICs were utilized to verify that our technology can be highly integrated in silicon and to demonstrate the benefits of the technology to target customers.As discussed above, in October 2009, we successfully incorporated these integrated circuits into sample 3G mobile handsets that were delivered and accepted by our Confidential Licensee. Our current prototypes support functionality that is multi-band (meaning multiple frequencies) and multi-mode (meaning multiple cellular standards and corresponding modulation formats). Our ICs support multiple bands of cellular and PCS (Personal Communications Service) frequencies and support the current and emerging cellular standards including GSM/EDGE, CDMA, W-CDMA, and HSUPA.We are also able to demonstrate 802.16e WiMax and LTE standards using PCS frequencies with our current ICs. We anticipate that future customers will either engage us to customize the implementation of the core technology based on their specific interface and product requirements or utilize our existing silicon designs.The engagement will largely depend on the nature of the customer’s product application. Our unique technologies process the RF waveform in a more optimal manner than existing technologies, thereby allowing the creation of handsets that have extended battery life, more easily incorporate multiple air interface standards and frequencies in smaller form factors, and reduce manufacturing costs.Our technologies provide such attractive benefits, in part, because of their unique integrated circuit architecture which enables efficient creation of highly accurate RF waveforms at the desired power levels thereby eliminating many of the limitations of legacy analog processing. Patents We consider our IP, including patents, patent applications, trademarks, and trade secrets to be significant to our competitive positioning.We have a program to file applications for and obtain patents, copyrights, and trademarks in the United States and in selected foreign countries where we believe filing for such protection is appropriate to establish and maintain our proprietary rights in our technology and products.As of September 30, 2009, we have obtained 86 U.S. and 56 foreign patents related to our RF technologies and have 86 patent applications pending in the United States and other countries.We estimate the economic lives of our patents to be fifteen to twenty years. In addition, from time to time, we obtain licenses from others for standard industry circuit designs that are integrated into our own ICs as supporting components that are peripheral to our core technologies.We believe there are multiple sources for these types of standard circuits and we estimate the economic lives of the licenses to be two to five years based on estimated technological obsolescence. S-4 The Offering Common stock offered 8,000,000 shares Common stock to be outstanding after this offering 41,127,471 shares(1) Use of proceeds We intend to use the net proceeds from this offering to fund working capital and for other general corporate purposes, including funding our research and our sales and marketing activities.See the section entitled “Use of Proceeds” on page S-7. NASDAQ Global Market symbol PRKR Risk Factors See the section entitled “Risk Factors” beginning on page S-6 for a discussion of factors you should consider carefully before deciding to invest in our common stock. Based on 33,127,471 shares of common stock outstanding as of October 31, 2009.Excludes 6,544,935 shares of common stock subject to warrants, options and restricted stock units outstanding as more fully described in the section entitled “Description of Common Stock.” S-5 RISK FACTORS Before you make a decision to invest in our common stock, you should consider carefully the risks described below, together with other information in this prospectus supplement, the accompanying prospectus and the information incorporated by reference herein and therein as set forth in our SEC filings, including our annual report on Form 10-K for the year ended December 31, 2008, as amended, and the quarterly reports on Forms 10-Q for the quarters ended March 31, 2009, June 30, 2009 and September 30, 2009.If any of the following events actually occur, our business, operating results, prospects or financial condition could be materially and adversely affected. This could cause the trading price of our common stock to decline and you may lose all or part of your investment. The risks described below are not the only ones that we face. Additional risks not presently known to us or that we currently deem immaterial may also significantly impair our business operations and could result in a complete loss of your investment. If we are unable to raise sufficient capital in this offering to cover our expected working capital requirements, there would be substantial doubt about our ability to continue as a going concern. We have incurred losses from operations and negative cash flows in every year since inception and have utilized the proceeds from the sale of our equity securities to fund our operations. For the nine months ended September 30, 2009, we incurred a net loss of approximately $16.6 million and negative cash flows from operations of approximately $10.6 million. At September 30, 2009, we had an accumulated deficit of approximately $207.3 million and working capital of approximately $1.7 million.Revenue for the remainder of 2009 will not be sufficient to cover our operational expenses for the remainder of 2009, and we expect our continued losses and use of cash to be funded from available working capital.If we are unable to raise sufficient capital in this offering to cover our expected working capital requirements, we would need to secure financing through other methods or significantly reduce our operating costs.This would raise substantial doubt about our ability to continue as a going concern.Our consolidated financial statements incorporated by reference have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business and do not include any adjustments that might result from the outcome of this uncertainty. Our outstanding warrants and stock options may be exercised in the future, and our outstanding restricted stock units may vest in the future, which would increase the number of shares eligible for future resale in the public market and result in dilution to our stockholders. As of October 31, 2009, we had 6,544,935 shares of common stock subject to outstanding warrants, options and restricted stock units, as more fully described in the section entitled “Description of Common Stock.”To the extent these warrants and stock options vest and are exercised, and to the extent the restricted stock units vest, additional shares of our common stock will be issued, which will result in dilution to our stockholders and increase the number of shares eligible for resale in the public market. Sales of substantial numbers of such shares in the public market could adversely affect the market price of such shares. If you purchase shares of common stock in this offering, you will suffer immediate and substantial dilution of your investment. The public offering price of the common stock will be substantially higher than the net tangible book value per share of our outstanding common stock. If you purchase shares of our common stock, you will incur immediate and substantial dilution in the amount of $1.57 per share, as more fully described in the section entitled “Dilution.” S-6 NOTE ON FORWARD-LOOKING STATEMENTS Some of the statements contained in this prospectus supplement, the accompanying prospectus and incorporated by reference herein and therein are forward-looking statements that relate to possible future events, our future performance and our future operations.In some cases, you can identify these forward-looking statements by the use of words such as “may,” “will,” “should,” “anticipates,” “believes,” “expects,” “plans,” “future,” “intends,” “could,” “estimate,” “predict,” “potential,” “continue,” or the negative of these terms or other similar expressions.These statements are only our predictions.We cannot guarantee future results, levels of activities, performance or achievements.Our actual results could differ materially from these forward-looking statements for many reasons, including the risks described from time to time in our SEC filings and those risks identified under the section entitled “Risk Factors” in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein.We are under no duty to update or revise any of the forward-looking statements or risk factors to conform them to actual results or to changes in our expectations. USE OF PROCEEDS We estimate that the net proceeds from the sale of our common stock in this offering will be as follows: Estimated net proceeds of this offering (1) After deducting discounts and commissions to the underwriter and an aggregate of $280,000 in estimated offering expenses payable by us for this offering. We intend to use the net proceeds from the sale of common stock in this offering to fund working capital and for other general corporate purposes, including funding our research and our sales and marketing activities. Pending use of the net proceeds of this offering, we intend to invest the net proceeds in accordance with our investment policy guidelines which currently provide for investment of funds in cash equivalents, money market funds and U.S. government obligations. S-7 CAPITALIZATION The following table sets forth our capitalization as of September 30, 2009 on an actual basis and on an as adjusted basis to give effect to the sale by us of 8,000,000 shares of common stock in this offering at a public offering price of $2.00 and after deducting the underwriting discounts and estimated offering expenses payable by us. You should read this table together with our financial statements and the related notes thereto, as well as “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the other financial information, incorporated by reference in this prospectus supplement or the accompanying prospectus. As of September 30, 2009 Actual As Adjusted (Unaudited) Stockholders equity: Common stock, $0.01 par value: 100,000,000 authorized, 33,127,471 issued and outstanding, and 41,127,471 issued and outstanding as adjusted $ $ Preferred stock, $1.00 par value: 15,000,000 authorized and no shares issued or outstanding 0 0 Additional paid-in capital Warrants to acquire common stock Accumulated deficit ) ) Total stockholders’ equity $ $ S-8 DILUTION If you invest in our common stock, your ownership interest will be diluted to the extent of the difference between the offering price per share and the net tangible book value per share of our common stock after this offering.Our net tangible book value as of September 30, 2009 was approximately $2.98 million, or approximately $0.09 per share of common stock.Net tangible book value per share represents total tangible assets less total liabilities, divided by the number of shares of common stock outstanding.Dilution in net tangible book value per share represents the difference between the amount per share paid by purchasers of the common stock in this offering and the net tangible book value per share of common stock immediately after the closing of this offering. After giving effect to the sale of the shares of common stock in this offering at a price of $2.00 per share, and after deducting the estimated offering expenses payable by us, our pro forma net tangible book value as of September 30, 2009 would have been approximately $17.58 million, or $0.43 per share of common stock.This represents an immediate increase in net tangible book value of $0.34 per share to existing stockholders and an immediate dilution of $1.57 per share to new investors purchasing common stock in this offering at the offering price. The following table illustrates this dilution on a per share basis: Public offering price per share in this offering $ Net tangible book value per share as of September30,2009 $ Increase in net tangible book value attributable to this offering $ Pro forma net tangible book value per share as of September30,2009 after giving effect to this offering $ Dilution per share to new investors in this offering $ The calculations above are based on 33,127,471 shares of common stock outstanding as of September 30, 2009 and 41,127,471shares of common stock outstanding as of September 30, 2009 after giving effect to the sale of the common stock in this offering.This number excludes 6,545,101 shares of common stock subject to warrants, options and restricted stock units outstanding as of September 30, 2009. S-9 DESCRIPTION OF COMMON STOCK Upon consummation of the offering, 41,127,471 shares of common stock will be outstanding.An additional 6,544,935 shares of common stock are subject to outstanding warrants, options and restricted stock units outstanding as of October 31, 2009, as follows: · Warrants to purchase 2,190,139 shares of common stock that were issued in connection with the sale of equity securities in various private placement transactions at exercise prices ranging from $1.88 to $56.66 per share with a weighted average exercise price of $26.12 per share and a weighted average remaining contractual life of 2.2 years. · Options to purchase 3,853,122 shares of common stock issued to employees, non-employee directors and consultants at exercise prices ranging from $1.63 to $48.00 per share with a weighted average exercise price of $14.11 per share and a weighted average remaining contractual life of 3.6 years.Includes 495,006 options which are not vested as of October 31, 2009. · Unvested, or vested and undistributed restricted stock units of 501,674 issued to employees and non-employee directors. For a description of our common stock, please see “Description of Capital Stock” in the accompanying prospectus. UNDERWRITING We are offering the shares of common stock described in this prospectus supplement through Piper Jaffray & Co. as sole underwriter and manager.We have entered into a firm commitment underwriting agreement with Piper Jaffray. Subject to the terms and conditions of the underwriting agreement, we have agreed to sell to the underwriter, and the underwriter has agreed to purchase from us, 8,000,000 shares of common stock. The underwriter is committed to purchase all the shares of common stock offered by us if it purchases any shares. The underwriter proposes to offer the common stock directly to the public at the initial public offering price set forth on the cover page of this prospectus supplement and to certain dealers at that price less a concession not in excess of $0.07 per share.After the offering, these figures may be changed by the underwriter. The underwriting fee is equal to the public offering price per share of common stock less the amount paid by the underwriter to us per share of common stock. The following table shows the per share and total underwriting discounts to be paid to the underwriter. Per share Total We have also agreed to reimburse the underwriter for certain out-of-pocket expenses incurred by it up to an aggregate of $150,000 with respect to this offering. In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8.0% of the aggregate amount of the securities offered pursuant to this prospectus supplement. We estimate that the total fees and expenses payable by us, excluding underwriting discounts and commissions, will be approximately $280,000, which includes up to $150,000 that we have agreed to reimburse the underwriter for the legal and other fees incurred by it in connection with the offering. S-10 We have agreed to indemnify the underwriter against certain liabilities, including liabilities under the Securities Act, or to contribute to payments that the underwriter may be required to make in respect of those liabilities. We and certain of our directors and executive officers are subject to lock-up agreements that prohibit us and them from offering for sale, pledging, announcing the intention to sell, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right or warrant to purchase, or otherwise transferring or disposing of, directly or indirectly, any shares of our common stock or any securities convertible into or exercisable or exchangeable for shares of our common stock, or from entering into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the common stock, for a period of at least 90 days following the date of the underwriting agreement without the prior written consent of the underwriter. The lock-up agreements do not prohibit our directors and executive officers from transferring shares of our common stock for bona fide estate or tax planning purposes, subject to certain requirements, including that the transferee be subject to the same lock-up terms. The lock-up agreements do not prohibit us from issuing shares upon the exercise or conversion of securities outstanding on the date of this prospectus supplement. The lock-up provisions do not prevent us from selling shares to the underwriter pursuant to the underwriting agreement, or prevent us from granting options to acquire securities under our existing stock option plans or issuing shares upon the exercise or conversion of securities outstanding on the date of this prospectus supplement. The 90-day lock-up period in all of the lock-up agreements is subject to extension if (i) during the last 17 days of the lock-up period we issue an earnings release or material news or a material event relating to us occurs or (ii) prior to the expiration of the lock-up period, we announce that we will release earnings results during the 16-day period beginning on the last day of the lock-up period, in which case the restrictions imposed in these lock-up agreements shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the underwriter waives the extension in writing. Our shares are quoted on the NASDAQ Global Market under the symbol “PRKR.” To facilitate the offering, the underwriter may engage in transactions that stabilize, maintain or otherwise affect the price of our common stock during and after the offering. Specifically, the underwriter may create a short position in the common stock for its own account by selling more shares of common stock than we have sold to it. Short sales involve the sale by the underwriter of a greater number of shares than they are required to purchase in the offering. The underwriter may close out any short position by purchasing shares in the open market. In addition, the underwriter may stabilize or maintain the price of our common stock by bidding for or purchasing shares of common stock in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to syndicate members or other broker-dealers participating in the offering are reclaimed if shares of common stock previously distributed in the offering are repurchased, whether in connection with stabilization transactions or otherwise. The effect of these transactions may be to stabilize or maintain the market price of our common stock at a level above that which might otherwise prevail in the open market. The imposition of a penalty bid may also affect the price of our common stock to the extent that it discourages resales of our common stock. The magnitude or effect of any stabilization or other transactions is uncertain. These transactions may be effected on the NASDAQ Global Market or otherwise and, if commenced, may be discontinued at any time. S-11 The underwriter may also engage in passive market making transactions in our common stock. Passive market making consists of displaying bids on the NASDAQ Global Market limited by the prices of independent market makers and effecting purchases limited by those prices in response to order flow. Rule 103 of Regulation M promulgated by the SEC limits the amount of net purchases that each passive market maker may make and the displayed size of each bid. Passive market making may stabilize the market price of our common stock at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time. This prospectus supplement and the accompanying prospectus in electronic format may be made available on web sites maintained by the underwriter or selling group member, and the underwriter or selling group member may distribute prospectus supplements electronically. From time to time in the ordinary course of their respective businesses, the underwriter and certain of its affiliates may in the future engage in commercial banking or investment banking transactions with us and our affiliates. LEGAL MATTERS The validity of the securities offered will be passed on for us by Holland & Knight LLP, Jacksonville, Florida.Certain legal matters will be passed upon for the underwriter by Goodwin Procter LLP, New York, New York. EXPERTS The consolidated financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus supplement by reference to the Annual Report on Form 10-K/A for the year ended December 31, 2008 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered certified public accounting firm, given on the authority of said firm as experts in auditing and accounting. WHERE YOU CAN FIND MORE INFORMATION We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities that we are offering under this prospectus supplement.It is important for you to read and consider all of the information contained in the registration statement and you should refer to our registration statement and its exhibits for further information. We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission.Our SEC filings are available to the public over the Internet at the SEC’s web site at http://www.sec.gov.You may also read and copy any document we file at the SEC’s public reference room at treet, N.E., Washington, D.C. 20549.Please call the SEC at 1-800-SEC-0330 for further information about the public reference room. The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to those documents.The information incorporated by reference is an important part of this prospectus supplement, and information that we file later with the SEC will automatically update and supersede this information.This prospectus supplement incorporates by reference our documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), until all of the securities are sold. · Annual Report on Form 10-K for the fiscal year ended December 31, 2008 (filed on March 16, 2009 and amended on July 2, 2009); S-12 · Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2009 (filed on May 11, 2009), June 30, 2009 (filed on August 10, 2009) and September 30, 2009 (filed on November 9, 2009); · Current Reports on Form 8-K dated February 26, 2009 (filed on February 27, 2009 and amended on March 2, 2009), March 3, 2009 (filed on March 3, 2009), March 16, 2009 (filed on March 16, 2009), April 1, 2009 (filed on April 1, 2009), May 15, 2009 (filed on May 19, 2009), June 15, 2009 (filed on June 15, 2009) and September 14, 2009 (filed on September 14, 2009); · Proxy Statement dated July 15, 2009, as amended, used in connection with the annual meeting of shareholders on August 21, 2009; · Form 8-A effective on November 30, 1993, registering our common stock, under Section 12(g) of the Exchange Act; and · Form 8-A effective on November 22, 2005, registering rights to purchase our Series E Preferred Stock, under Section 12(g) of the Exchange Act. Any statement contained in a document filed before the date of this prospectus supplement and incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus supplement to the extent that a statement contained herein or therein modifies or supersedes such statement.Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus supplement. Any information that we file after the date of this prospectus supplement with the SEC will automatically update and supersede the information contained in this prospectus supplement.Notwithstanding the foregoing, we are not incorporating any document or portion thereof or information deemed to have been furnished and not filed in accordance with SEC rule. Potential investors may obtain a copy of any of our SEC filings, excluding exhibits, without charge, by written or oral request directed to ParkerVision, Inc., Attention: Investor Relations, 7915 Baymeadows Way, Suite 400, Jacksonville, Florida 32256. S-13 Prospectus PARKERVISION, INC. COMMON STOCK, PREFERRED STOCK, WARRANTS AND DEBT SECURITIES By this prospectus, we will offer and sell from time to time shares of our common stock and preferred stock, warrants and debt securities at an aggregate initial offering price not to exceed $50,000,000.The debt securities that we may offer may consist of senior debt securities or subordinated debt securities, in each case consisting of notes or other evidence of indebtedness in one or more series.The warrants that we may offer will consist of warrants to purchase any of the other securities that may be sold under this prospectus.The securities offered under this prospectus may be offered separately, together, or in separate series, and in amounts, at prices and on terms to be determined at the time of sale.We will provide the specific terms of these securities in supplements to this prospectus.You should read this prospectus and any supplements carefully before you invest. We expect to use the net proceeds from the sale of the securities offered hereby to fund working capital, capital expenditures, acquisitions, operating losses and other general corporate purposes. Our common stock is listed for trading on the NASDAQ Global Market under the symbol “PRKR.”On September 11, 2009, the last reported sale price of our common stock was $3.80. Investing in our securities involves a high degree of risk.See the section entitled “Risk Factors” appearing on page 3 in this prospectus and elsewhere in any supplements for a discussion of information that should be considered in connection with an investment in our securities. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.Any representation to the contrary is a criminal offense. This prospectus may not be used to consummate the sale of any securities unless accompanied by a prospectus supplement relating to the securities offered. The date of this prospectus is September 14, 2009 TABLE OF CONTENTS PROSPECTUS SUMMARY 1 RISK FACTORS 3 NOTE ON FORWARD-LOOKING STATEMENTS 4 USE OF PROCEEDS 4 RATIO OF EARNINGS TO FIXED CHARGES 4 DESCRIPTION OF CAPITAL STOCK 5 DESCRIPTION OF WARRANTS 8 DESCRIPTION OF DEBT SECURITIES 9 PLAN OF DISTRIBUTION OF SHELF SECURITIES 16 LEGAL MATTERS 18 INDEPENDENT REGISTERED CERTIFIED PUBLIC ACCOUNTING FIRM 18 WHERE YOU CAN FIND MORE INFORMATION 18 You should rely only on the information contained or incorporated by reference in this prospectus.We have not authorized anyone to provide you with different information.We are not making an offer of these securities in any state where the offer is not permitted. PROSPECTUS SUMMARY This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission using a “shelf” registration process.Under this shelf process, we may, from time to time, sell or issue any of the combination of securities described in this prospectus in one or more offerings with a maximum aggregate offering price of up to $50,000,000. This prospectus provides you with a general description of the securities we may offer.Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering.The prospectus supplement may also add, update or change information contained in this prospectus.You should read both this prospectus and any prospectus supplement, together with the additional information described below under the heading “Where You Can Find More Information.” You should not assume that the information appearing in this prospectus is accurate as of any date other than the date on the front cover of this prospectus.You should not assume that the information contained in the documents incorporated by reference in this prospectus is accurate as of any date other than the respective dates of those documents.Our business, financial condition, results of operations, and prospects may have changed since that date. References in this prospectus to “ParkerVision,” “we,” “us” and “our” refer to ParkerVision, Inc., a Florida corporation. Company Summary General We are in the business of designing, developing and selling our proprietary radio frequency (“RF”) technologies and products for use in semiconductor circuits for wireless communication products.Our business includes licensing our intellectual property for incorporation into wireless products designed by our customers.We have also recently entered into an agreement for the joint development and marketing of wireless radio modules that incorporate our technologies.Under this agreement, we will supply unpackaged integrated circuits that will be manufactured for us, based on our designs, under agreements with various semiconductor foundries.In addition, our business may include, from time to time, providing engineering consulting and design services to our customers, for a negotiated fee, to assist them in developing products incorporating our technologies.We are primarily focused on incorporating our technologies into mobile handsets, but our technologies are applicable to other wireless products that are related to networks serving mobile handsets such as data cards, pico cells, and femtocells.Our technology can also be applied to non-cellular radio applications such as military radios. We were incorporated under the laws of the State of Florida on August 22, 1989.Our executive offices are located at 7915 Baymeadows Way, Suite 400, Jacksonville, Florida 32256.Our telephone number is (904) 737-1367. Development of Our Business In 2005, we began educating prospective customers about the benefits of our technologies, with a primary focus on our RF transmit, or d2p™, technology and its unique ability to address certain high-priority market needs related to mobile handset applications.In 2006, we completed our first d2p integrated circuit (“IC”) which embodied many of the advancements of our technology and enabled us to begin demonstrating partially-integrated prototypes.Throughout 2006, 2007 and 2008, we continued to further advance our prototype ICs and increased the level of prototype integration while cultivating potential customer relationships.Our sales-related activities during this three-year period included prototype demonstrations of our d2p platform, support of in-depth technical due-diligence by prospective customers, analysis of prospective customer product requirements, delivery of initial proposals and terms, and ultimately, negotiations of proposed business relationships. 1 When we targeted the cellular industry in 2005, our initial target customer base was limited to the top tier mobile handset manufacturers.However, in 2006 and 2007, mobile handset manufacturers were shifting RF innovation and developments to their chipset providers.Accordingly, we expanded our target customer base to include not only the mobile handset manufacturers, but also their component suppliers. In 2007, we entered into licensing agreements with two customers, ITT Corporation (“ITT”) and a global baseband chipset supplier whose name remains confidential under the terms of our agreement with them (“Confidential Licensee”).During 2008, our product development efforts were largely focused on advancing our ICs from prototype to production-ready samples for our customers.In addition, we delivered a development/demonstration platform to ITT for their use and, late in 2008, we delivered production-ready d2p silicon samples and reference designs to our Confidential Licensee.The delivered samples met or exceeded all critical functional and performance requirements under our agreement.Under the terms of our licensing agreements, we will be paid royalties on a per unit basis for products sold that incorporate our licensed intellectual property.To date, we have not earned any royalties from these two customers as they have not yet commenced shipments of products incorporating our technologies. On December 4, 2008, we entered into a Product and Market Development Agreement (the “LGI Agreement”) with LG Innotek Co., Ltd. (“LGI”), a division of the LG Group.Under the terms of the LGI Agreement, we will work cooperatively with LGI to develop and market RF modules that incorporate our technologies for use in mobile handset and data card applications.Under this agreement, we will supply LGI with tested, unpackaged integrated circuits under a supply agreement, the terms of which will be finalized as part of the development planning with LGI.The modules are being designed for commercial HEDGE applications.HEDGE is an acronym for applications that incorporate support for 2G, 2.5G and 3G waveform standards including GSM, EDGE, WCDMA, and HSPA. Our ability to generate revenues sufficient to offset costs is subject to our ability to successfully support our customers in completing their initial product designs and our ability to secure a reasonable market share through additional product offerings with our current customers and/or the addition of new customers. Although our primary target market is the mobile handset industry, we have also explored potential relationships outside this target market to the extent that the requirements of the prospective customers are in concert with the needs of our primary target market.This exploration resulted in our licensing agreement with ITT in 2007. We believe our technology has substantial advantages over competing technologies, especially in the third generation, or 3G, mobile handset market and generations that are evolving beyond 3G, such as 4G mobile handset standards and applications. Technology and Products Our wireless technologies represent unique, proprietary methods for processing RF waveforms in wireless applications.The technology applies to the transmit (baseband data to RF carrier signal) and receive (RF carrier signal to baseband data) functions of a radio transceiver.The transmit portion of the technology is called Direct2Power™, or d2p™, and enables the transformation of a digital baseband signal to an RF carrier waveform, at the desired power output level, in a single unified operation.The receiver portion of the technology is called Direct2Data™, or d2d™, and enables the direct conversion of an RF carrier to baseband data signal.Although our primary sales efforts were focused on commercialization of our d2p technology solutions, both of the agreements with customers in the commercial handset market contemplate incorporation of our d2d technology as well. 2 We have completed engineering prototypes of our d2p-based ICs targeted at mobile handset applications.The ICs which incorporate the core RF technology were produced using a Silicon Germanium (“SiGe”) process through a fabrication relationship with IBM Microelectronics (“IBM”).Late in 2008, we completed the integration of the digital engine that controls our RF transmit IC and interfaces to the mobile phone baseband processor.This digital engine was produced using a CMOS semiconductor process through a third-party fabrication relationship.These ICs are utilized to verify that our technology can be highly integrated in silicon and to demonstrate the benefits of the technology to target customers. Our current prototypes support functionality that is multi-band (meaning multiple frequencies) and multi-mode (meaning multiple cellular standards and corresponding modulation formats). Our ICs support multiple bands of cellular and PCS (Personal Communications Service) frequencies and support the current and emerging cellular standards including GSM/EDGE, CDMA, W-CDMA, and HSUPA.We are also able to demonstrate 802.16e WiMax and LTE standards using PCS frequencies with our current ICs. We anticipate that future customers will either engage us to customize the implementation of the core technology based on their specific interface and product requirements or utilize our existing silicon designs.The engagement will largely depend on the nature of the customer’s product application. Our unique technologies process the RF waveform in a more optimal manner than existing technologies, thereby allowing the creation of handsets that have extended battery life, more easily incorporate multiple air interface standards and frequencies in smaller form factors, and reduce manufacturing costs.Our technologies provide such attractive benefits, in part, because of their unique integrated circuit architecture which enables efficient creation of highly accurate RF waveforms at the desired power levels thereby eliminating many of the limitations of legacy analog processing. Patents We consider our IP, including patents, patent applications, trademarks, and trade secrets to be significant to our competitive positioning.We have a program to file applications for and obtain patents, copyrights, and trademarks in the United States and in selected foreign countries where we believe filing for such protection is appropriate to establish and maintain our proprietary rights in our technology and products.As of August 31, 2009, we have obtained 86 U.S. and 56 foreign patents related to our RF technologies and have 84 patent applications pending in the United States and other countries.We estimate the economic lives of our patents to be fifteen to twenty years. In addition, from time to time, we obtain licenses from others for standard industry circuit designs that are integrated into our own ICs as supporting components that are peripheral to our core technologies.We believe there are multiple sources for these types of standard circuits and we estimate the economic lives of the licenses to be two to five years based on estimated technological obsolescence. RISK FACTORS Any investment in our securities involves a high degree of risk.Potential investors are urged to read and consider the risk factors relating to an investment in our company set forth in our SEC filings, including our annual report on Form 10-K/A for the year ended December 31, 2008 and the quarterly report on Form 10-Q for the quarters ended March 31, 2009 and June 30, 2009. 3 NOTE ON FORWARD-LOOKING STATEMENTS Some of the statements contained in this prospectus and incorporated by reference herein are forward-looking statements that relate to possible future events, our future performance and our future operations.In some cases, you can identify these forward-looking statements by the use of words such as “may,” “will,” “should,” “anticipates,” “believes,” “expects,” “plans,” “future,” “intends,” “could,” “estimate,” “predict,” “potential,” “continue,” or the negative of these terms or other similar expressions.These statements are only our predictions.We cannot guarantee future results, levels of activities, performance or achievements.Our actual results could differ materially from these forward-looking statements for many reasons, including the risks described from time to time in our SEC filings and those risks identified under sections entitled “Risk Factors” in any prospectus supplement.We are under no duty to update or revise any of the forward-looking statements or risk factors to conform them to actual results or to changes in our expectations. USE OF PROCEEDS Unless otherwise indicated in the applicable prospectus supplement, the net proceeds from the sale of the securities offered hereby will be used to fund working capital, capital expenditures, acquisitions, operating losses and other general corporate purposes. RATIO OF EARNINGS TO FIXED CHARGES Our deficiency (excess) of earnings to fixed charges for the indicated periods are set forth below. The information set forth below should be read in conjunction with the financial information incorporated by reference herein. (Amounts in thousands of dollars) For the Six Months Ended June30, 2009 For the Year Ended December 31, 2008 For the Year Ended December 31, 2007 For the Year Ended December 31, 2006 For the Year Ended December 31, 2005 For the Year Ended December 31, 2004 Total Earnings $ ) $ ) $ ) $ ) $ ) $ ) Fixed charges Ratio of earnings to fixed charges (A) - Deficiency of earnings to fixed charges (A) Due to our losses from continuing operations, the ratio coverage is less than 1:1. This table sets forth our ratio of earnings to fixed charges on a historical basis for the periods indicated. The ratios are calculated by dividing earnings by fixed charges. For the purposes of computing the ratio of earnings to fixed charges, earnings consist of pretax losses from continuing operations plus fixed charges. Fixed charges consist of estimates of interest inherent in rental expense. 4 We had no shares of preferred stock outstanding for any period presented. As a result, the ratio of earnings to combined fixed charges and preferred stock dividends is the same as the ratio of earnings to fixed charges. DESCRIPTION OF CAPITAL STOCK The following description of our common stock and our preferred stock is a summary. You should refer to our certificate of incorporation and our bylaws for the actual terms of our capital stock. Common Stock We are authorized to issue up to 100,000,000 shares of common stock, $0.01 par value per share. As of September 11, 2009, there were 33,107,810 shares of our common stock outstanding. Holders of our common stock are entitled to one vote per share on all matters submitted to a vote of stockholders and may not cumulate votes for the election of directors. Common stockholders have the right to receive dividends when, as, and if declared by the board of directors from funds legally available therefore. Holders of common stock have no preemptive rights and have no rights to convert their common stock into any other securities. Our common stock is subject to the express terms of our preferred stock and any series thereof. Preferred Stock We are authorized to issue up to 15,000,000 shares of preferred stock, $1.00 par value per share. As of September 11, 2009, there were no preferred shares issued or outstanding. The shares of preferred stock have such rights and preferences as our board of directors shall determine, from time to time. The issuance of preferred stock, while providing desirable flexibility in connection with possible acquisition and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or discourage a third party from acquiring, a majority of our outstanding common stock. Our board of directors may issue preferred stock with voting and conversion rights that could adversely affect the voting power of the holders of our common stock or holders of other series of preferred stock. If we offer a series of preferred stock, we will describe the specific terms of that series in a prospectus supplement, including: · the title of the series of preferred stock and the number of shares offered; · the price at which the preferred stock will be issued; · the dividend rate, if any, the dates on which the dividends will be payable and other terms relating to the payment of dividends on the preferred stock; · the voting rights of the preferred stock; · whether the preferred stock is redeemable or subject to a sinking fund, and the terms of any such redemption or sinking fund; · whether the preferred stock is convertible into any other securities, and the terms and conditions of any such conversion; · the liquidation preference of the preferred stock; and · any additional rights, preferences and limitations of the preferred stock. The description of the terms of a series of preferred stock to be set forth in an applicable prospectus supplement will not be complete and will be subject to and qualified in its entirety by reference to the certificate of designation relating to that series of preferred stock. The registration statement of which this prospectus forms a part will include the certificate of designation as an exhibit or as a document incorporated by reference. 5 Any preferred stock will, when issued, be fully paid and non-assessable. Series E Preferred Stock On November 17, 2005, the board of directors designated 100,000 shares of authorized preferred stock as the Series E Preferred Stock in conjunction with its adoption of a Shareholder Protection Rights Plan (as described below).As of December 31, 2008, there were no shares of this series issued and outstanding.The following description of the Series E Preferred Stock, and any description of this series included in a prospectus supplement, may not be complete and is subject to and qualified in its entirety by reference to the certificate of designations, which was filed with the SEC on November 22, 2005 as Exhibit 4.02 to a Current Report on Form 8-K. Certain rights of this series of preferred stock are defined in terms of a “Reference Package.”The “Reference Package” is initially 10,000 shares of common stock, as adjusted for stock dividends, subdivisions and combinations. The holders of full or fractional shares of this series are entitled to receive dividends, when and as declared by the board of directors, on each date that dividends or other distributions (other than dividends or distributions payable in our common stock) are payable on or in respect of common stock comprising part of the Reference Package, in an amount per whole share of this series equal to the aggregate amount of dividends or other distributions that would be payable on such date to a holder of the Reference Package.In addition, on the last day of March, June, September and December in each year, the holders of this series are entitled to receive dividends in an amount per whole share of this series equal to the excess (if any) of $100 over the aggregate dividends paid per whole share of this series during the three-month period ending on such last day. Dividends on each full and each fractional share of this series are cumulative from the date such full or fractional share is originally issued. In the event of any liquidation, dissolution or winding up of our affairs, whether voluntary or involuntary, the holders of full and fractional shares of this series shall be entitled, before any distribution or payment is made on any date to the holders of the common stock or any other stock of ours ranking junior to this series upon liquidation, to be paid in full an amount per whole share of this series equal to the greater of $100 or the aggregate amount distributed or to be distributed in connection with such liquidation, dissolution or winding up to a holder of the Reference Package, together with accrued dividends to such distribution or payment date, whether or not earned or declared. This series shall rank junior to all other series or classes of our preferred stock, now existing or hereafter created, as to payment of dividends and the distribution of assets, unless the terms of any such other series or class shall provide otherwise. Each whole share of this series shall, on any matter, vote as a class with any other capital stock comprising part of the Reference Package and voting on such matter and shall have the number of votes thereon that a holder of the Reference Package would have. Shareholder Protection Rights Plan On November 21, 2005, we adopted a Shareholder Protection Rights Agreement (“Rights Agreement”) pursuant to which we issued, on November 29, 2005, as a dividend, one right to acquire a fraction of a share of Series E Preferred Stock for each then outstanding share of common stock.Each share of common stock issued by us after such date also has included, and any subsequent shares of common stock issued by us prior to the Separation Time (as defined in the Rights Agreement) will include, an attached right.The following description of the Rights Agreement, and any description of the Rights Agreement included in a prospectus supplement, may not be complete and is subject to and qualified in its entirety by reference to the terms and provisions of the Rights Agreement, which was filed with the SEC on November 22, 2005 as Exhibit 4.01 to a Current Report on Form 8-K. 6 The principal objective of the Rights Agreement is to cause someone interested in acquiring us to negotiate with our board of directors rather than launch an unsolicited or hostile bid.The Rights Agreement subjects a potential acquirer to substantial voting and economic dilution. The rights initially are not exercisable and trade with our common stock.In the future, the rights may become exercisable with various provisions that may discourage a takeover bid.If a potential acquirer initiates a takeover bid or becomes the beneficial owner of 15% or more of our common stock, the rights will separate from the common stock.Upon separation, the holders of the rights may exercise their rights at an exercise price of $45 per right (the “Exercise Price”), subject to adjustment and payable in cash.Additionally, the rights have what are known as “flip-in” and “flip-over” provisions that could make any acquisition of us more costly to the potential acquirer. The “flip-in” provision provides that, in the event a potential acquirer acquires 15% or more of the outstanding shares of our common stock, upon payment of the exercise price, the holders of the rights will receive from us that number of shares of common stock having an aggregate market price equal to twice the Exercise Price, as adjusted. The “flip-over” provision allows the holder to purchase that number of shares of common/voting equity of a successor entity, if we are not the surviving corporation in a business combination, with an aggregate market price equal to twice the Exercise Price. We have the right to substitute for any of our shares of common stock that we are obligated to issue, shares of Series E Preferred Stock at a ratio of one ten-thousandth of a share of Series E Preferred Stock for each share of common stock. The rights may be redeemed upon approval of the board of directors at a redemption price of $0.01. The Rights Agreement expires on November 21, 2015. Director Nominations; Special Meetings Nominations for our board of directors may be made by our board or by any holder of common stock.A shareholder entitled to vote for the election of directors may nominate a person for election as director only if the shareholder provides written notice of his nomination to our secretary not later than 120 days in advance of the same day and month that our proxy statement was released to shareholders in connection with the previous year’s annual meeting of shareholders or, if no annual meeting was held in the previous year, then by the end of the fiscal year to which the annual meeting in which the nomination will be made relates.A special meeting of our shareholders may be called only by our board of directors or our chief executive officer.These provisions and the board of directors’ right to issue shares of our preferred stock from time to time, in one or more classes or series without stockholder approval, are intended to enhance the likelihood of continuity and stability in the composition of the policies formulated by our board of directors. These provisions are also intended to discourage some tactics that may be used in proxy fights. Transfer Agent and Registrar The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, 59 Maiden Lane, Plaza Level, New York, New York 10038 and can be reached at (800) 937-5449.The transfer agent and registrar for any series of preferred stock will be set forth in the applicable prospectus supplement. 7 DESCRIPTION OF WARRANTS We may issue warrants for the purchase of preferred stock, common stock or debt securities, or any combination of these securities. Warrants may be issued independently or together with other securities and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between a warrant agent and us. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. The following outlines some of the general terms and provisions of the warrants that we may issue from time to time. Additional terms of the warrants and the applicable warrant agreement will be set forth in the applicable prospectus supplement. The following description, and any description of the warrants included in a prospectus supplement, may not be complete and is subject to and qualified in its entirety by reference to the terms and provisions of the applicable warrant agreement, which we will file with the SEC in connection with any offering of warrants. Debt Warrants The prospectus supplement relating to a particular issue of warrants exercisable for debt securities will describe the terms of those warrants, including the following: · the title of the warrants; · the offering price for the warrants, if any; · the aggregate number of the warrants; · the designation and terms of the debt securities purchasable upon exercise of the warrants; · if applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with each security; · if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; · the principal amount and price of debt securities that may be purchased upon exercise of a warrant; · the dates on which the right to exercise the warrants commence and expire; · if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; · whether the warrants represented by the warrant certificates or debt securities that may be issued upon exercise of the warrants will be issued in registered or bearer form; · information relating to book-entry procedures, if any; · if applicable, a discussion of material U.S. federal income tax considerations; · anti-dilution provisions of the warrants, if any; · redemption or call provisions, if any, applicable to the warrants; and · any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. 8 Stock Warrants The prospectus supplement relating to a particular issue of warrants exercisable for common stock or preferred stock will describe the terms of the common stock warrants and preferred stock warrants, including the following: · the title of the warrants; · the offering price for the warrants, if any; · the aggregate number of the warrants; · the designation and terms of the common stock or preferred stock that may be purchased upon exercise of the warrants; · if applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with each security; · if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; · the number of shares and price of common stock or preferred stock that may be purchased upon exercise of a warrant; · the dates on which the right to exercise the warrants commence and expire; · if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; · if applicable, a discussion of material U.S. federal income tax considerations; · anti-dilution provisions of the warrants, if any; · redemption or call provisions, if any, applicable to the warrants; and · any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. Exercise of Warrants Each warrant will entitle the holder of the warrant to purchase at the exercise price set forth in the applicable prospectus supplement the principal amount of debt securities or shares of common stock or preferred stock being offered. Holders may exercise warrants at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will be void. Holders may exercise warrants as set forth in the prospectus supplement relating to the warrants being offered. Until a holder exercises the warrants to purchase any securities underlying the warrants, the holder will not have any rights as a holder of the underlying securities by virtue of ownership of warrants. DESCRIPTION OF DEBT SECURITIES We may offer any combination of senior debt securities or subordinated debt securities.We may issue the senior debt securities and the subordinated debt securities under separate indentures between us, as issuer, and the trustee or trustees identified in a prospectus supplement.Further information regarding the trustee may be provided in the prospectus supplement.The form for each type of indenture is filed as an exhibit to the registration statement of which this prospectus is a part. 9 The prospectus supplement will describe the particular terms of any debt securities we may offer and may supplement the terms summarized below.The following summaries of the debt securities and the indentures are not complete.We urge you to read the indentures filed as exhibits to the registration statement that includes this prospectus and the description of the additional terms of the debt securities included in the prospectus supplement. General Within the total dollar amount of this shelf registration statement, we may issue an unlimited principal amount of debt securities in separate series.We may specify a maximum aggregate principal amount for the debt securities of any series.The debt securities will have terms that are consistent with the indentures.Senior debt securities will be unsubordinated obligations and will rank equal with all our other unsubordinated debt.Subordinated debt securities will be paid only if all payments due under our senior indebtedness, including any outstanding senior debt securities, have been made. The indentures might not limit the amount of other debt that we may incur or whether that debt is senior to the debt securities offered by this prospectus, and might not contain financial or similar restrictive covenants.The indentures might not contain any provision to protect holders of debt securities against a sudden or dramatic decline in our ability to pay our debt. The prospectus supplement will describe the debt securities and the price or prices at which we will offer the debt securities.The description will include: · the title and form of the debt securities; · any limit on the aggregate principal amount of the debt securities or the series of which they are a part; · the date or dates on which we must repay the principal, the maturity date and the principal amount due at maturity and whether the securities will be offered at a price such that they will be deemed an “original issue discount”; · the person to whom any interest on a debt security of the series will be paid; · the rate or rates at which the debt securities will bear interest; · if any, the date or dates from which interest will accrue, and the dates on which we must pay interest; · the place or places where we must pay the principal and any premium or interest on the debt securities; · the terms and conditions on which we may redeem any debt security, if at all; · any obligation to redeem or purchase any debt securities, and the terms and conditions on which we must do so; · the denominations in which we may issue the debt securities; · the currency in which we will pay the principal of and any premium or interest on the debt securities and whether we may pay in property other than cash, including our securities; · the principal amount of the debt securities that we will pay upon declaration of acceleration of their maturity; 10 · whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; · if applicable, that the debt securities are defeasible and the terms of such defeasance; · if applicable, the terms of any right to convert debt securities into, or exchange debt securities for, shares of our debt securities, preferred stock or common stock or other securities or property; · whether we will issue the debt securities in the form of one or more global securities and, if so, the respective depositaries for the global securities and the terms of the global securities; · the subordination provisions that will apply to any subordinated debt securities; · any addition to or change in the events of default applicable to the debt securities and any change in the right of the trustee or the holders to declare the principal amount of any of the debt securities due and payable; · any addition to or change in the covenants in the indentures; and · any other terms of the debt securities not inconsistent with the applicable indentures. We may sell the debt securities at a substantial discount below their stated principal amount.We will describe U.S. federal income tax considerations, if any, applicable to debt securities sold at an original issue discount in the prospectus supplement.An “original issue discount security” is any debt security sold for less than its face value, and which provides that the holder cannot receive the full face value if maturity is accelerated.The prospectus supplement relating to any original issue discount securities will describe the particular provisions relating to acceleration of the maturity upon the occurrence of an event of default.In addition, we will describe U.S.federal income tax or other considerations applicable to any debt securities that are denominated in a currency or unit other than U.S.dollars in the prospectus supplement. Conversion and Exchange Rights The prospectus supplement will describe, if applicable, the terms on which you may convert debt securities into or exchange them for debt securities, preferred stock and common stock or other securities or property.The conversion or exchange may be mandatory or may be at our option or at your option.The prospectus supplement will describe how the amount of debt securities, number of shares of preferred stock and common stock or other securities or property to be received upon conversion or exchange would be calculated. Subordination of Subordinated Debt Securities The indebtedness underlying any subordinated debt securities will be payable only if all payments due under our senior indebtedness, as defined in the applicable indenture and any indenture supplement, including any outstanding senior debt securities, have been made.If we distribute our assets to creditors upon any dissolution, winding-up, liquidation or reorganization or in bankruptcy, insolvency, receivership or similar proceedings, we must first pay all amounts due or to become due on all senior indebtedness before we pay the principal of, or any premium or interest on, the subordinated debt securities.In the event the subordinated debt securities are accelerated because of an event of default, we may not make any payment on the subordinated debt securities until we have paid all senior indebtedness or the acceleration is rescinded.If the payment of subordinated debt securities accelerates because of an event of default, we must promptly notify holders of senior indebtedness of the acceleration. 11 If we experience a bankruptcy, dissolution or reorganization, holders of senior indebtedness may receive more, ratably, and holders of subordinated debt securities may receive less, ratably, than our other creditors.The indenture for subordinated debt securities may not limit our ability to incur additional senior indebtedness. Form, Exchange and Transfer We will issue debt securities only in fully registered form, without coupons, and only in denominations of $1,000 and integral multiples thereof, unless the prospectus supplement provides otherwise.The holder of a debt security may elect, subject to the terms of the indentures and the limitations applicable to global securities, to exchange them for other debt securities of the same series of any authorized denomination and of similar terms and aggregate principal amount. Holders of debt securities may present them for exchange as provided above or for registration of transfer, duly endorsed or with the form of transfer duly executed, at the office of the transfer agent we designate for that purpose.We will not impose a service charge for any registration of transfer or exchange of debt securities, but we may require a payment sufficient to cover any tax or other governmental charge payable in connection with the transfer or exchange.We will name the transfer agent in the prospectus supplement.We may designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, but we must maintain a transfer agent in each place where we will make payment on debt securities. If we redeem the debt securities, we will not be required to issue, register the transfer of or exchange any debt security during a specified period prior to mailing a notice of redemption.We are not required to register the transfer of or exchange of any debt security selected for redemption, except the unredeemed portion of the debt security being redeemed. Global Securities The debt securities may be represented, in whole or in part, by one or more global securities that will have an aggregate principal amount equal to that of all debt securities of that series.Each global security will be registered in the name of a depositary identified in the prospectus supplement.We will deposit the global security with the depositary or a custodian, and the global security will bear a legend regarding the restrictions on exchanges and registration of transfer. No global security may be exchanged in whole or in part for debt securities registered, and no transfer of a global security in whole or in part may be registered, in the name of any person other than the depositary or any nominee or successor of the depositary unless: · the depositary is unwilling or unable to continue as depositary; or · the depositary is no longer in good standing under the Exchange Act or other applicable statute or regulation. The depositary will determine how all securities issued in exchange for a global security will be registered. As long as the depositary or its nominee is the registered holder of a global security, we will consider the depositary or the nominee to be the sole owner and holder of the global security and the underlying debt securities.Except as stated above, owners of beneficial interests in a global security will not be entitled to have the global security or any debt security registered in their names, will not receive physical delivery of certificated debt securities and will not be considered to be the owners or holders of the global security or underlying debt securities.We will make all payments of principal, premium and interest on a global security to the depositary or its nominee.The laws of some jurisdictions require that some purchasers of securities take physical delivery of such securities in definitive form.These laws may prevent you from transferring your beneficial interests in a global security. 12 Only institutions that have accounts with the depositary or its nominee and persons that hold beneficial interests through the depositary or its nominee may own beneficial interests in a global security.The depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of debt securities represented by the global security to the accounts of its participants.Ownership of beneficial interests in a global security will be shown only on, and the transfer of those ownership interests will be effected only through, records maintained by the depositary or any such participant. The policies and procedures of the depositary may govern payments, transfers, exchanges and other matters relating to beneficial interests in a global security.We and the trustee will assume no responsibility or liability for any aspect of the depositary’s or any participant’s records relating to, or for payments made on account of, beneficial interests in a global security. Payment and Paying Agents We will pay principal and any premium or interest on a debt security to the person in whose name the debt security is registered at the close of business on the regular record date for such interest. We will pay principal and any premium or interest on the debt securities at the office of our designated paying agent.Unless the prospectus supplement indicates otherwise, the corporate trust office of the trustee will be the paying agent for the debt securities. Any other paying agents we designate for the debt securities of a particular series will be named in the prospectus supplement.We may designate additional paying agents, rescind the designation of any paying agent or approve a change in the office through which any paying agent acts, but we must maintain a paying agent in each place of payment for the debt securities. The paying agent will return to us all money we pay to it for the payment of the principal, premium or interest on any debt security that remains unclaimed for a specified period.Thereafter, the holder may look only to us for payment, as an unsecured general creditor. Consolidation, Merger and Sale of Assets Under the terms of the indentures, so long as any securities remain outstanding, we may not consolidate or enter into a share exchange with or merge into any other person, in a transaction in which we are not the surviving corporation, or sell, convey, transfer or lease our properties and assets substantially as an entirety to any person, unless: · the successor assumes our obligations under the debt securities and the indentures; and · we meet the other conditions described in the indentures. Events of Default Each of the following will constitute an event of default under each indenture: · failure to pay any interest on any debt security when due, for more than a specified number of days past the due date; · failure to pay any principal or deposit any sinking fund payment when due; · failure to perform any covenant or agreement in the indenture that continues for a specified number of days after written notice has been given by the trustee or the holders of a specified percentage in aggregate principal amount of the debt securities of that series; 13 · events of bankruptcy, insolvency or reorganization; and · any other event of default specified in the prospectus supplement. If an event of default occurs and continues, both the trustee and holders of a specified percentage in aggregate principal amount of the outstanding securities of that series may declare the principal amount of the debt securities of that series to be immediately due and payable.The holders of a majority in aggregate principal amount of the outstanding securities of that series may rescind and annul the acceleration if all events of default, other than the nonpayment of accelerated principal, have been cured or waived. Except for its duties in case of an event of default, the trustee will not be obligated to exercise any of its rights or powers at the request or direction of any of the holders, unless the holders have offered the trustee reasonable indemnity.If they provide this indemnification and subject to conditions specified in the applicable indenture, the holders of a majority in aggregate principal amount of the outstanding securities of any series 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 the trustee with respect to the debt securities of that series. No holder of a debt security of any series may institute any proceeding with respect to the indentures, or for the appointment of a receiver or a trustee, or for any other remedy, unless: · the holder has previously given the trustee written notice of a continuing event of default; · the holders of a specified percentage in aggregate principal amount of the outstanding securities of that series have made a written request upon the trustee, and have offered reasonable indemnity to the trustee, to institute the proceeding; · the trustee has failed to institute the proceeding for a specified period of time after its receipt of the notification; and · the trustee has not received a direction inconsistent with the request within a specified number of days from the holders of a specified percentage in aggregate principal amount of the outstanding securities of that series. Modification and Waiver We and the trustee may change an indenture without the consent of any holders with respect to specific matters, including: · to fix any ambiguity, defect or inconsistency in the indenture; and · to change anything that does not materially adversely affect the interests of any holder of debt securities of any series. In addition, under the indentures, the rights of holders of a series of notes may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected.However, we and the trustee may only make the following changes with the consent of the holder of any outstanding debt securities affected: · extending the fixed maturity of the series of notes; · reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption, of any debt securities; or · reducing the percentage of debt securities the holders of which are required to consent to any amendment. 14 The holders of a majority in principal amount of the outstanding debt securities of any series may waive any past default under the indenture with respect to debt securities of that series, except a default in the payment of principal, premium or interest on any debt security of that series or in respect of a covenant or provision of the indenture that cannot be amended without each holder’s consent. Except in limited circumstances, we may set any day as a record date for the purpose of determining the holders of outstanding debt securities of any series entitled to give or take any direction, notice, consent, waiver or other action under the indentures.In limited circumstances, the trustee may set a record date.To be effective, the action must be taken by holders of the requisite principal amount of such debt securities within a specified period following the record date. Defeasance To the extent stated in the prospectus supplement, we may elect to apply the provisions in the indentures relating to defeasance and discharge of indebtedness, or to defeasance of restrictive covenants, to the debt securities of any series.The indentures provide that, upon satisfaction of the requirements described below, we may terminate all of our obligations under the debt securities of any series and the applicable indenture, known as legal defeasance, other than our obligation: · to maintain a registrar and paying agents and hold monies for payment in trust; · to register the transfer or exchange of the notes; and · to replace mutilated, destroyed, lost or stolen notes. In addition, we may terminate our obligation to comply with any restrictive covenants under the debt securities of any series or the applicable indenture, known as covenant defeasance. We may exercise our legal defeasance option even if we have previously exercised our covenant defeasance option.If we exercise either defeasance option, payment of the notes may not be accelerated because of the occurrence of events of default. To exercise either defeasance option as to debt securities of any series, we must irrevocably deposit in trust with the trustee money and/or obligations backed by the full faith and credit of the United States that will provide money in an amount sufficient in the written opinion of a nationally recognized firm of independent public accountants to pay the principal of, premium, if any, and each installment of interest on the debt securities.We may only establish this trust if, among other things: · no event of default shall have occurred or be continuing; · in the case of legal defeasance, we have delivered to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the Internal Revenue Service a ruling or there has been a change in law, which in the opinion of our counsel, provides that holders of the debt securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred; · in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred; and 15 · we satisfy other customary conditions precedent described in the applicable indenture. Notices We will mail notices to holders of debt securities as indicated in the prospectus supplement. Title We may treat the person in whose name a debt security is registered as the absolute owner, whether or not such debt security may be overdue, for the purpose of making payment and for all other purposes. Governing Law The indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York. PLAN OF DISTRIBUTION OF SHELF SECURITIES We may sell or issue the shelf securities from time to time in any one or more of the following ways: · through underwriters or dealers; · through agents; or · directly to a limited number of purchasers or to a single purchaser. Registration of the shelf securities covered by this prospectus does not mean, however, that those securities will necessarily be offered or sold.For each offering of securities hereunder, we will describe the method of distribution of such securities, among other things, in a prospectus supplement.A prospectus supplement will set forth the terms of the offering of the shelf securities, including: · the name or names of any underwriters and the respective amounts of any securities underwritten or purchased by each of them; · the name or names of any person or persons to whom we sell or issue any securities; · the initial public offering price and the proceeds we will receive; · any discounts, commissions or concessions allowed or paid to dealers; and · any securities exchanges on which the securities may be listed. Only underwriters named in the prospectus supplement are deemed to be underwriters in connection with the shelf securities offered. If underwriters are used in the sale of any shelf securities, the securities will be acquired by the underwriters for their own account and may be resold 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 sale.The securities may be either offered to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate.Unless otherwise set forth in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions precedent and the underwriters will be obligated to purchase all of the securities if any are purchased.Any initial public offering price and any discounts or concessions allowed or paid to dealers may be changed from time to time. 16 The shelf securities may be sold or issued directly by us or through agents designated by us from time to time.Any agent involved in the offer or sale of the securities in respect of which a prospectus supplement is delivered will be named, and any commissions payable by us to such agent will be set forth, in the prospectus supplement.Unless otherwise indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. We may authorize underwriters, dealers or agents to solicit offers by institutional investors, such as commercial banks and investment companies, to purchase the shelf securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future.The conditions to these contracts and the commissions payable for solicitation of the contracts will be set forth in the applicable prospectus supplement. In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8.0% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement. Agents and underwriters may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities Act of 1933, or to contribution with respect to payments which the agents or underwriters may be required to make in respect of their liabilities.Agents and underwriters may be our customers, engage in transactions with us, or perform services for us in the ordinary course of business. During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market.These transactions may include over allotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering.The underwriters may also impose a penalty bid, whereby selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if such offered securities are repurchased by the syndicate in stabilizing or covering transactions.These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market.If commenced, these activities may be discontinued at any time. Any underwriters who are qualified market makers may engage in passive market making transactions in the securities in accordance with Rule 103 of Regulation M. Unless otherwise specified in the applicable prospectus supplement, securities offered under this prospectus will be a new issue and, other than the common stock, which is quoted on the NASDAQ Global Market, will have no established trading market. We may elect to list any other class or series of securities on an exchange, and in the case of the common stock, on any additional exchange, but, unless otherwise specified in the applicable prospectus supplement, we shall not be obligated to do so. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities may or may not be listed on a national securities exchange or a foreign securities exchange. No assurance can be given as to the liquidity of the trading market for any of the securities. We will bear all costs, expenses and fees associated with the registration of the shares of common stock. 17 LEGAL MATTERS The validity of the securities offered will be passed on for us by our counsel, Graubard Miller, New York, New York. INDEPENDENT REGISTERED CERTIFIED PUBLIC ACCOUNTING FIRM The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form 10-K/A for the year ended December 31, 2008 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered certified public accounting firm, given on the authority of said firm as experts in auditing and accounting. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission.Our SEC filings are available to the public over the Internet at the SEC’s web site athttp://www.sec.gov.You may also read and copy any document we file at the SEC’s public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549.Please call the SEC at 1-800-SEC-0330 for further information about the public reference room. The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to those documents.The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information.This prospectus incorporates by reference our documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, until all of the securities are sold. · Annual Report on Form 10-K for the fiscal year ended December 31, 2008 (filed on March 16, 2009, as amended on July 2, 2009); · Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2009 (filed on May 11, 2009) and June 30, 2009 (filed on August 10, 2009); · Current Reports on Form 8-K dated February 26, 2009 (filed on February 27, 2009, as amended on March 2, 2009), March 3, 2009 (filed the same day), March 16, 2009 (filed the same day), April 1, 2009 (filed the same day), May 15, 2009 (filed on May 19, 2009) and June 15, 2009 (filed the same day); · Proxy Statement dated July 15, 2009, as amended, used in connection with the annual meeting of shareholders on August 21, 2009; and · Form 8-A declared effective on November 30, 1993, registering our common stock, under Section 12(g) of the Securities Exchange Act of 1934, as amended. Any statement contained in a document filed before the date of this prospectus and incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein modifies or supersedes such statement.Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Any information that we file after the date of this prospectus with the SEC will automatically update and supersede the information contained in this prospectus.Notwithstanding the foregoing, we are not incorporating any document or portion thereof or information deemed to have been furnished and not filed in accordance with SEC rule. 18 Potential investors may obtain a copy of any of our SEC filings, excluding exhibits, without charge, by written or oral request directed to ParkerVision, Inc., Attention: Investor Relations, 7915 Baymeadows Way, Suite 400, Jacksonville, Florida 32256. 19 8,000,000 Shares PARKERVISION, INC. Common Stock PROSPECTUS SUPPLEMENT Piper Jaffray November 10, 2009

Exhibit 10.34 [ex10_34-10k12312010.jpg]

Name: Commission Regulation (EEC) No 3081/90 of 25 October 1990 opening invitations to tender for the fixing of aid for the private storage of carcases and half-carcases of lamb Type: Regulation Date Published: nan No L 295/30 Official Journal of the European Communities 26. 10. 90 COMMISSION REGULATION (EEC) No 3081/90 of 25 October 1990 opening invitations to tender for the fixing of aid for the private storage of carcases and half-carcases of lamb THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 3013/89 of 25 September 1989 on the common organization of the market in sheepmeat and goatmeat ('), and in parti ­ cular Article 7 (5) thereof, Whereas Commission Regulation (EEC) No 2659/80 of 17 October 1980 laying down detailed rules for granting private storage aid for sheepmeat and goatmeat products (2), as amended by Regulation (EEC) No 3496/88 (3), provides in particular for detailed rules on the invitation to tender ; Whereas Commission Regulation (EEC) No 287/90 of 1 February 1990 setting out some detailed rules for private storage aid for lamb in the period 1 January to 30 April 1990 (4), as last amended by Regulation (EEC) No 2567/90 (*), provides in particular the list of products eligible and the minimum quantities in respect of which a tender may be submitted ; Whereas the application of Article 7 (3) of Regulation (EEC) No. 30 13/89 results in the opening of invitations to tender for private storage aid ; Whereas that Article provides for the application of these measures on the basis of the situation of each quotation zone ; whereas it is appropriate consequently to open tenders separately for each of the zones where the condi ­ tions are fulfilled ; Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sheep and Goats, HAS ADOPTED THIS REGULATION : Article 1 Separate invitations to tender are opened in Great Britain, Denmark, Ireland, Northern Ireland, Germany and the Netherlands for aid to private storage for carcases and half-carcases of lamb. Subject to the provisions of Regulation (EEC) No 287/90 tenders may be made to the intervention agencies of the Member States concerned. Article 2 Tenders must be submitted not later than 2 p.m. on 2 November 1990 to the relevant intervention agency. Article 3 This 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, 25 October 1990. For the Commission Ray MAC SHARRY Member of the Commission (') OJ No L 289, 7. 10 . 1989, p. 1 . o OJ No L 276, 20. 10. 1980, p. 12. (3) OJ No L 306, 11 . 11 . 1988, p. 28 . (4) OJ No L 31 , 2. 2. 1990, p. 11 . à “ OJ No L 243, 6. 9. 1990, p. 10.

Name: Commission Regulation (EEC) No 79/93 of 18 January 1993 fixing the amount by which the variable component of the levy applicable to bran and sharps originating in Egypt must be reduced Type: Regulation Date Published: nan No L 11 /14 19. 1 . 93Official Journal of the European Communities COMMISSION REGULATION (EEC) No 79193 of 18 January 1993 fixing the amount by which the variable component of the levy applicable to bran and sharps originating in Egypt must be reduced whereas the variable components applicable during October, November and December 1992 to the products falling within CN codes 2302 10, 2302 20, 2302 30 and 2302 40 are to be taken into consideration, HAS ADOPTED THIS REGULATION : THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 1030/77 of 17 May 1977 concluding the Interim Agreement between the European Economic Community and the Arab Republic of Egypt ('), and in particular the second subparagraph of paragraph 3 of the . exchange of letters relating to Article 13 of the Agreement, Whereas the exchange of letters covered by Regulation (EEC) No 1030/77 provides that the variable component of the levy calculated in accordance with Article 2 of Council Regulation (EEC) No 2744/75 of 29 October 1975 on the import and export system for products processed from cereals and rice (2), as last amended by Regulation (EEC) No 1906/87 (3), is to be reduced by an amount fixed by the Commission each quarter ; whereas this amount must be equal to 60 % of the average of the levies in force during the three months preceding the month during which the amount is fixed ; Article 1 The amounts referred to in the second subparagraph of paragraph 3 of the exchange of letters covered by Regula ­ tion (EEC) No 1030/77 to be deducted from the variable component applicable to bran and sharps originating in Egypt shall be as shown in the Annex hereto. Article 2 This Regulation shall enter into force on 1 February 1993 . This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 18 January 1993. For the Commission Rene STEICHEN Member of the Commission (') OJ No L 126, 23. 5 . 1977, p . 1 . (2) OJ No L 281 , 1 . 11 . 1975, p . 65 . (') OJ No L 182, 3 . 7 . 1987, p . 49 . 19 . 1 . 93 Official Journal of the European Communities No L 11 /15 ANNEX to the Commission Regulation of 18 January 1993 fixing the amount by which the variable component of the levy applicable to bran and sharps originating in Egypt must be reduced (ECU/tonne) CN code Amount 230210 10 34,37 230210 90 73,65 2302 20 10 34,37 230220 90 73,65 2302 30 10 34,37 2302 30 90 73,65 2302 40 10 34,37 2302 40 90 73,65

ITEMID: 001-89932 LANGUAGEISOCODE: ENG RESPONDENT: BIH BRANCH: ADMISSIBILITY DATE: 2008 DOCNAME: LUKIC v. BOSNIA AND HERZEGOVINA IMPORTANCE: 4 CONCLUSION: Inadmissible JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä TEXT: The applicants, Mr Spasoje Lukić, Ms Jovanka Lukić, Mr Svetozar Lukić and Mr Aleksandar Lukić, are citizens of Bosnia and Herzegovina who were born in 1939, 1954, 1977 and 1979 respectively and live in Doboj. They were represented before the Court by Mr S. Lopandić, a lawyer practising in Doboj. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicants deposited foreign currency in their bank accounts at the then Jugobanka Sarajevo Ekspozitura Doboj. In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...). Following several unsuccessful attempts to withdraw their funds, the applicants initiated court proceedings seeking the recovery of their entire “old” foreign-currency savings and accrued interest. By a decision of the Doboj Court of First Instance of 23 July 1993, the Jugobanka Banja Luka Ekspozitura Doboj (the legal successor of the Jugobanka Sarajevo Ekspozitura Doboj) was ordered to pay the applicants 7,741.99 German marks, 22.03 US dollars and 3,087.57 Swiss francs together with default interest on the above amounts at the statutory rate from 18 December 1992. The judgment entered into force on 25 August 1993. On 17 November 1993 the Doboj Court of First Instance issued a writ of execution (rješenje o izvršenju). The execution proceedings were stayed between 11 May 1998 and 2 April 2001. On 3 April 2001 the domestic Human Rights Chamber found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention arising from a failure to enforce the judgment of 23 July 1993 and ordered the Republika Srpska to ensure full enforcement thereof without further delay. The Human Rights Chamber further considered that any pecuniary damage would be compensated through payment of default interest as provided by the judgment in issue. It therefore rejected the applicants’ claim for compensation for pecuniary damage. The applicants did not claim compensation for non-pecuniary damage. On 17 April 2002 the Republika Srpska took over the judgment debt, pursuant to section 20 of the Opening Balance Sheets Act 1998. On 12 March 2004 the Republika Srpska paid the principal debt in the amount of 11,562.80 convertible marks (BAM). On 19 July 2005 the applicants were paid default interest in the amount of BAM 12,625.93. The Default Interest Rate Act 2001 (Zakon o visini stope zatezne kamate; published in the Official Gazette of the Republika Srpska (“OG RS”) no. 19/01 of 11 May 2001; amendments published in OG RS no. 52/06 of 17 May 2006) entered into force on 19 May 2001. It sets the rate of default interest to be paid in the Republika Srpska on outstanding amounts expressed in any currency. According to section 3 of this Act, default interest is calculated on the basis of the official retail price growth rate (stopa rasta cijena na malo) plus another 0.05% daily (fiksna stopa). Inflation in the Republika Srpska, as measured by the official retail price growth rate, was relatively slow in the years from 2001 to 2004. The relevant figures were as follows: 6.5% in 2001, 1.7% in 2002, 1.8% in 2003 and 1.9% in 2004 (see the Annual Report of the Central Bank of Bosnia and Herzegovina for 2006, p. 123). As to the period before the entry into force of the Default Interest Rate Act 2001, the rate of default interest to be paid in the Republika Srpska on outstanding amounts expressed in a foreign currency is the rate applicable to overnight foreign-currency deposits (see, for example, judgment of the Supreme Court of the Republika Srpska no. Rev-281/04 of 21 February 2006). According to an official report submitted by the respondent Government, at the request of the Court, in another case (Kudić v. Bosnia and Herzegovina, no. 28971/05), the relevant figures for the years from 1992 (when the default period started in the present case) to 2001 (when the Default Interest Rate Act 2001 entered into force) were as follows: 4.06% in 1992, 2.82% in 1993, 2.43% in 1994, 2.70% in 1995, 2.49% in 1996, 3.16% in 1997, 3.01% in 1998, 2.78% in 1999, 2.40% in 2000 and 2.20% in 2001). For other relevant law and practice see the admissibility decision in Jeličić, cited above; the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006...; and Pejaković and Others v. Bosnia and Herzegovina, nos. 337/04, 36022/04 and 45219/04, 18 December 2007.

Exhibit 12(f) Entergy Texas, Inc. Computation of Ratios of Earnings to Fixed Charges Twelve Months Ended December 31, 30-Jun 2004 2005 2006 2007 2008 2009 Fixed charges, as defined: Total Interest $65,220 $59,882 $70,479 $85,250 $80,197 $89,121 Interest applicable to rentals 4,255 2,299 2,356 3,572 2,760 3,355 Total fixed charges, as defined 69,475 62,181 72,835 88,822 82,957 $92,476 Earnings as defined: Net Income $51,136 $48,916 $54,137 $58,921 $57,895 $40,242 Add: Provision for income taxes: Total 23,318 17,192 27,325 36,249 28,118 20,868 Fixed charges as above 69,475 62,181 72,835 88,822 82,957 92,476 Total earnings, as defined $143,929 $128,289 $154,297 $183,992 $168,970 $153,586 Ratio of earnings to fixed charges, as defined 2.07 2.06 2.12 2.07 2.04 1.66

EXHIBIT 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 I, Steve Aninye, the Principal Accounting and Financial Officer, Secretaryand Director of Crown Dynamics, Corp. , certifies, under the standards set forth and solely for the purposes of 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to his knowledge, the Annual Report on Form 10-K of the Registrant for the fiscal year ended December 31, 2011, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained in that Form 10-K fairly presents, in all material respects, the financial condition andresults of operations of the Registrant. (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant. Date: March 14, 2012 Crown Dynamics Corp By: /s/Steve Aninye Name: Steve Aninye Title: Principal Accounting and Financial Officer A signed original of this written statement required by Section 906 has been provided to the Registrant and will be retained by the Registrant and furnished to the Securities and Exchange Commission or its staff upon request.

EXHIBIT 10.2 AMENDED AND RESTATED CALPINE CORPORATION 2008 EQUITY INCENTIVE PLAN Notice of Performance Share Unit Grant Participant: [ l ] Corporation: Calpine Corporation Notice: You have been granted the following Performance Share Units in accordance with the terms of this notice, the Performance Share Unit Award Agreement attached hereto as Attachment A (such notice and agreement, collectively, this “Agreement”) and the Plan identified below. Type of Award: Performance-based Restricted Stock Units, referred to herein as “Performance Share Units”. A Performance Share Unit is an unfunded and unsecured obligation of the Corporation to pay the cash equivalent of up to two (2) shares of Common Stock, as determined in accordance with this Agreement and subject to the terms and conditions of this Agreement and those of the Plan. Plan: Amended and Restated Calpine Corporation 2008 Equity Incentive Plan. Grant: Grant Date: [ l ] Number of Performance Share Units:  [ l ] Acknowledgement and Agreement: The undersigned Participant acknowledges receipt of, and understands and agrees to, the terms and conditions of this Agreement and the Plan.   CALPINE CORPORATION   PARTICIPANT         Name:   Name:   Title:       Attachment A AMENDED AND RESTATED CALPINE CORPORATION 2008 EQUITY INCENTIVE PLAN Performance Share Unit Award Agreement This Performance Share Unit Award Agreement, dated as of the Grant Date set forth in the Notice of Performance Share Unit Grant to which this Performance Share Unit Award Agreement is attached (the “Grant Notice”), is made between Calpine Corporation (the “Corporation”) and the Participant set forth in the Grant Notice. The Grant Notice is included in and made part of this Performance Share Unit Award Agreement. 1.Definitions. Capitalized terms used but not defined herein have the meanings 2.    Grant of Performance Share Units. Subject to the provisions of this Agreement and the provisions of the Plan, the Corporation hereby grants to the Participant, pursuant to the Plan, the number of Performance Share Units set forth in the Grant Notice. 3.    Vesting Criteria Applicable to Performance Share Units. (a)Performance Cycle. The Performance Cycle for the Performance Share Units shall commence on January 1, 2016, and shall end on December 31, 2018. (b)Performance Goal. The performance goal for the Performance Cycle is the cumulative total return per share of Common Stock to the Corporation’s shareholders, inclusive of dividends paid, during the Performance Cycle in comparison to the cumulative total return per share of common stock, inclusive of dividends paid, during the Performance Cycle achieved by the companies (each, an “S&P 500 Company,” and collectively, the “S&P 500 Companies”) comprising the Standard & Poor’s 500 index on January 1, 2016, as set forth in this Section 3(b). For purposes of this Agreement, such cumulative total shareholder return (“TSR”) for the Corporation and each of the S&P 500 Companies (including Dynegy Inc., NRG Energy Inc., and Talen Energy Corporation, together with the Corporation, the “IPP Sector Peer Companies”) shall be measured by dividing (A) the sum of (1) the dividends paid (regardless of whether paid in cash or property) on the common stock of such company during the Performance Cycle, assuming reinvestment of such dividends in such stock (based on the closing price of such stock on the date such dividend is paid), plus (2) the difference between the average closing price of a share of such company’s common stock on the principal United States exchange on which such stock trades for the twenty (20) trading days occurring immediately prior to the first day of the Performance Cycle (the “Beginning Average Value”) and the average closing price of a share of such stock on the principal United States exchange on which such stock trades for the twenty (20) trading days immediately prior to and including the last day of the Performance Cycle (appropriately adjusted for any stock dividend, stock split, spin-off, merger or other similar corporate events affecting such stock), by (B) the Beginning Average Value. For the avoidance of doubt, it is intended that the foregoing calculation of TSR shall take into account not only the reinvestment of dividends in a share of common stock of the Corporation or any S&P 500 Company, (including any IPP Sector Peer Company), as applicable, but also capital appreciation or depreciation in the shares deemed acquired by such reinvestment. All determinations under this Section 3 shall be made by the Committee. (c)TSR Percentile Ranking. Except as provided in Section 4 or Section 6 hereof, the Performance Share Units shall be earned based on the Corporation’s TSR percentile ranking in comparison to the TSRs of the S&P 500 Companies during the Performance Cycle. As soon as practicable after the completion of the Performance Cycle, (i) the TSRs of the Corporation and each of the S&P 500 Companies shall be calculated, and (ii) the relative - 2 - ranking of the Corporation’s TSR for the Performance Cycle as compared to the TSRs for the S&P 500 Companies for the Performance Cycle shall be determined and expressed as a percentile ranking (the “TSR Percentile Ranking”). If at any time during the Performance Cycle, an S&P 500 Company ceases to be a publicly-traded company, such company shall be removed and treated as if it had never been an S&P 500 Company for purposes of determining the TSR Percentile Ranking. (d)Earned Percentage. Subject to adjustment based upon the application of the IPP Sector Modifier described below, the Earned Percentage shall be determined in accordance with the following schedule based on the TSR Percentile Ranking, with any Earned Percentage for any TSR Percentile Ranking between the levels set forth in such schedule determined by linear interpolation: TSR Percentile Ranking   Earned Percentage 90th percentile   200% 80th percentile   175% 70th percentile   150% 60th percentile   125% 50th percentile   100% 40th percentile   75% 30th percentile   50% Less than 30th percentile   0% (e)Earned Performance Share Units. The number of Performance Share Units earned (the “Earned Performance Share Units”) shall be the product of the number of Performance Share Units set forth in the Grant Notice multiplied by the Earned Percentage, subject to adjustment based upon the application of the IPP Sector Modifier descried below, and Committee certification pursuant to paragraph (g) of this Section 3. (f)IPP Sector Modifier. The Earned Percentage may be increased or decreased based on the Corporation’s TSR Ranking among the IPP Sector Peer Companies, in accordance with the schedule below. As soon as practicable after the completion of the Performance Cycle, (i) the TSRs of the Corporation and each of the other IPP Peer Sector Companies shall be calculated, and (ii) the relative ranking of the Corporation’s TSR for the Performance Cycle as compared to the TSRs for the IPP Peer Sector Companies for the Performance Cycle shall be determined and expressed as a numerical ranking (the “IPP Sector TSR Ranking”). The Earned Percentage shall be adjusted in accordance with the schedule below such that the maximum Earned Percentage is capped, and the minimum Earned Percentage is limited, based on the Corporation’s IPP Sector TSR Ranking. For example, (i) in order for the Earned Percentage to equal the maximum 200%, the Corporation’s IPP Sector TSR Ranking must also be #1 or #2, and (ii) in order for the Earned Percentage to equal the minimum 0%, the Corporation’s IPP Sector TSR Ranking must also be #3 or #4. IPP Sector TSR Ranking   Maximum Earned Percentage   Minimum Earned Percentage #1   200%   50% #2   200%   25% #3   175%   0% #4   150%   0% If the Corporation’s cumulative TSR is within 1% of another IPP Sector Peer Company, then the maximum or minimum Earned Percentage will equal the average outcome of those rankings. (g)Committee Certification. As soon as practicable after completion of the Performance Cycle, the Committee shall determine and certify in writing the TSR Percentile Ranking and IPP Sector TSR Ranking attained, the Earned Percentage and the number of Earned Performance Share Units (which written certification may be in the form of approved minutes of the Committee meeting in which such certification is made). (h)Failure to Become Earned Performance Share Units. To the extent that the Performance Share Units do not become Earned Performance Share Units pursuant to this Section 3, such Performance Share Units shall be automatically forfeited. - 3 - 4.    Termination of Employment. Any Performance Share Units that have not been settled in accordance with Section 5 hereof prior to the date on which the status of employment of the Participant with the Corporation or its Affiliates shall terminate (including by reason of such an Affiliate ceasing to be an Affiliate of the Corporation) (any such termination, “Termination of Employment”) shall be immediately and automatically forfeited upon such date, except as follows: (a)    Disability or Death. Upon Termination of Employment by reason of the Participant’s Disability or death, then, notwithstanding such Termination of Employment, the Earned Percentage shall be 100% and the Earned Performance Share Units shall be settled in accordance with Section 5 hereof. (b)    Retirement Eligible. In the event that the Participant is, or becomes, eligible to Retire, then, effective on the later to occur of: (i) the date on which the Participant initially becomes eligible to Retire, and (ii) the one-year anniversary of the Grant Date, notwithstanding any Termination of Employment occurring after such later date, the Performance Share Units shall be eligible to become Earned Performance Share Units, and any Earned Performance Share Units shall be settled subject to the same terms and conditions hereunder had the Participant not incurred such Termination of Employment. For the avoidance of doubt, if the Participant incurs a Termination of Employment prior to such later date, then this paragraph (b) of Section 4 shall not apply. 5.    Settlement of Earned Performance Share Units. During calendar year 2019, as soon as reasonably practicable following completion of all determinations and certifications contemplated by Section 3, but in no event later than March 15, 2019, subject to satisfaction of applicable tax withholding obligations in accordance with Section 7, the Corporation shall cause to be paid to the Participant an amount in cash equal to the product of the number of Earned Performance Share Units multiplied by the Fair Market Value of a share of Common Stock as of the last trading day of the Performance Cycle, provided, however, that if the Participant incurs a Termination of Employment as described in Section 4(a) hereof, then such payment shall be made within sixty (60) days after the date of such Termination of Employment and such Fair Market Value shall be determined as of the date of such Termination of Employment, less applicable taxes in accordance with Section 7. Notwithstanding the foregoing provisions of this Section 5 to the contrary, if at the time of the Participant’s separation from service within the meaning of Code Section 409A, the Participant is a “specified employee” within the meaning of Code Section 409A, any payment hereunder that constitutes a “deferral of compensation” under Code Section 409A and that would otherwise become due on account of such separation from service shall be delayed, and payment shall be made in full upon the earlier to occur of (a) a date during the thirty-day period commencing six months and one day following such separation from service and (b) the date of the Participant’s death. 6.    Change in Control. (a)Accelerated Payment of Performance Share Units. Notwithstanding Sections 3 and 5, in the event a Change in Control occurs prior to the end of the Performance Cycle, and provided that the Performance Share Units have not been forfeited pursuant to Section 4 prior to the date of such Change in Control, then: (i) the Corporation’s TSR, the TSR for each S&P 500 Company, the TSR for the IPP Peer Group Companies, the TSR Percentile Ranking, and the IPP Sector TSR Ranking shall be determined in accordance with Section 3(a), (b), (c), and (f) for the portion of the Performance Cycle that ends on the last trading day that is on or immediately prior to the fifth (5th) day immediately prior to the date of the Change in Control; (ii) the number of Earned Performance Share Units shall be equal to the product of (A) the greater of (x) the Earned Percentage determined in accordance with Sections 3(d) through 3(f) based on the TSR Percentile Ranking and IPP Sector TSR Ranking determined in accordance with clause (i) of this Section 6(a), and (y) 100%, multiplied by (B) the number of Performance Share Units set forth in the Grant Notice, and (iii) subject to satisfaction of applicable tax withholding obligations in accordance with Section 7, the Corporation shall cause to be paid to the Participant an amount in cash equal to the product of such number of Earned Performance Share Units multiplied by the Change in Control Price (as defined in paragraph (b) of this Section 6) on, or within five (5) business days after, the date of such Change in Control, based on the Change in Control Price; provided, however, that if such Change in Control does not constitute a “change in control event,” within the meaning of Treasury Regulations Section 1.409A-3(i)(5), then any amounts payable under this Section 6 that constitute a “deferral of compensation” under Code Section 409A shall be made at the time specified in Section 5 notwithstanding the occurrence of such Change in Control. All determinations under this Section 6 shall be made by the Committee as constituted immediately prior to the applicable Change in Control. - 4 - (b)Change in Control Price. For purposes of this Section 6, “Change in Control Price” means the closing price of a share of the Common Stock on the principal United States exchange on which Common Stock trades on the last trading day occurring immediately prior to the date of the Change in Control. 7.    Taxes. Upon settlement of the Earned Performance Share Units, or as of any other date on which the value of any Performance Share Units otherwise becomes includible in the Participant’s gross income for Federal, state, local or non-United States income tax or other tax or social security purposes (or results in any other taxes of any kind), the Participant shall deliver to the Corporation at the time of such settlement or such other date such amount of cash as the Corporation or its Affiliate may require to meet its obligations under applicable tax and other laws or regulations, provided that the Corporation may determine that any such tax obligations shall be satisfied by the Corporation withholding any amount otherwise payable to the Participant pursuant to this Agreement. The Corporation or an Affiliate may, in the discretion of the Committee, provide for alternative arrangements to satisfy applicable tax withholding requirements in accordance with Section 21 of the Plan. Regardless of any action the Corporation or any Affiliate takes with respect to any or all tax withholding obligations, the Participant acknowledges that the ultimate liability for all such taxes is and remains the Participant’s responsibility. 8.    Dividend Equivalents. With respect to the number of Performance Share Units set forth in the Grant Notice, the Participant shall be credited with Dividend Equivalents with respect to each such Performance Share Unit equal to the amount per share of Common Stock of any ordinary cash dividends declared by the Board with record dates during the period beginning on the first day of the Performance Cycle and ending on the earliest to occur of: (a) the last day of the Performance Cycle; (b) the date of a Change in Control and (c) the date such Performance Share Unit terminates or is forfeited under Section 3 or Section 4. The Corporation shall pay in cash to the Participant an amount equal to the product of (i) sum of the aggregate amount of such Dividend Equivalents credited to the Participant, multiplied by (ii) the Earned Percentage, such amount to be paid as and when the related Performance Share Units are paid in accordance with Section 5 or Section 6, as applicable. Any Dividend Equivalents shall be forfeited as and when the related Performance Share Units are forfeited in accordance with Section 3 or Section 4. 9.    No Rights as a Shareholder. Neither the Participant nor any other person shall at any time be or become the beneficial owner of any shares of Common Stock underlying the Performance Share Units, nor have any rights to dividends or other rights as a shareholder with respect to any such shares. 10.    Transferability. The Performance Share Units shall not be transferable otherwise than by will or the laws of descent and distribution; provided, however, that the Participant may file with the Company a written designation of a beneficiary on such form as may be prescribed by the Company and may, from time to time, amend or revoke such designation, and, in the event of the Participant’s death, any payment due under Section 5 shall be made to the most recently designated such beneficiary, and if no designated beneficiary survives the Participant, any such payment shall be made to the executor or administrator of the Participant’s estate. 11.    No Right to Continued Employment. Neither the Performance Share Units nor any terms contained in this Agreement shall confer upon the Participant any rights or claims except in accordance with the express provisions of the Plan and this Agreement, and shall not give the Participant any express or implied right to be retained in the employment or service of the Corporation or any Affiliate for any period, or in any particular position or at any particular rate of compensation, nor restrict in any way the right of the Corporation or any Affiliate, which right is hereby expressly reserved, to modify or terminate the Participant’s employment or service at any time for any reason. The Participant acknowledges and agrees that any right to Earned Performance Share Units is earned only by continuing as an employee of the Corporation or an Affiliate and satisfaction of other applicable terms and conditions contained in the Plan and this Agreement, and not through the act of being hired or being granted the Performance Share Units hereunder. 12.    The Plan. By accepting any benefit under this Agreement, the Participant and any person claiming under or through the Participant shall be conclusively deemed to have indicated his or her acceptance and ratification of, and consent to, all of the terms and conditions of the Plan and this Agreement and any action taken under the Plan by the Board, the Committee or the Corporation, in any case in accordance with the terms and conditions of - 5 - the Plan. This Agreement is subject to all the terms, provisions and conditions of the Plan, which are incorporated herein by reference, and to such rules, policies and regulations as may from time to time be adopted by the Committee. In the event of any conflict between the provisions of the Plan and this Agreement, the provisions of the Plan shall control, and this Agreement shall be deemed to be modified accordingly. The Plan and the prospectus describing the Plan can be found on the Corporation’s HR intranet. A paper copy of the Plan and the prospectus shall be provided to the Participant upon the Participant’s written request to the Corporation at the address indicated in Section 13 hereof. 13.    Notice. All notices required to be given under this Agreement or the Plan shall be in writing and delivered in person or by registered or certified mail, postage prepaid, to the other party, in the case of the Corporation, at the address of its principal place of business (or such other address as the Corporation may from time to time specify), or, in the case of the Participant, at the Participant’s address set forth in the Corporation’s records; provided, however, any such notice to the Participant may be delivered electronically to the Participant’s email address set forth in the Corporation’s records. Each party to this Agreement agrees to inform the other party immediately upon a change of address. All notices shall be deemed delivered when received. 14.    Other Plans. The Participant acknowledges that any income derived from the Peformance Share Units shall not affect the Participant’s participation in, or benefits under, any other benefit plan or other contract or arrangement maintained by the Corporation or any Affiliate. 15.    Arbitration. Any dispute or controversy arising under or in connection with this Agreement shall be settled by binding arbitration in Houston, Texas by one arbitrator appointed in the manner set forth by the American Arbitration Association. Any arbitration proceeding pursuant to this paragraph shall be conducted in accordance with the Employment Dispute Resolution Rules of the American Arbitration Association. Judgment may be entered on the arbitrators' award in any court having jurisdiction. 16.    Entire Agreement and Amendments. This Agreement and the Plan contain the entire agreement of the parties relating to the matters contained herein and supersede all prior agreements and understandings, oral or written, between the parties with respect to the subject matter hereof. This Agreement may be amended in accordance with Section 22 of the Plan. 17.    Separability. If any provision of this Agreement is rendered or declared illegal or unenforceable by reason of any existing or subsequently enacted legislation or by the decision of any arbitrator or by decree of a court of last resort, the parties shall promptly meet and negotiate substitute provisions for those rendered or declared illegal or unenforceable to preserve the original intent of this Agreement to the extent legally possible, but all other provisions of this Agreement shall remain in full force and effect. 18.    Electronic Delivery And Signatures. The Corporation may, in its sole discretion, decide to deliver any documents related to the Performance Share Units, this Agreement or to participation in the Plan or to future grants that may be made under the Plan by electronic means or to request the Participant's consent to participate in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Corporation or another third party designated by the Corporation. If the Corporation establishes procedures of an electronic signature system for delivery and acceptance of Plan documents (including this Agreement or any Award Agreement like this Agreement), the Participant hereby consents to such procedures and agrees that his or her electronic signature is the same as, and shall have the same force and effect as, his or her manual signature. 19.    Section 409A. This Agreement and delivery of shares of Common Stock under this Agreement are intended to be exempt from or to comply with Section 409A of the Code and shall be administered and construed in accordance with such intent. In furtherance, and not in limitation, of the foregoing: (a) in no event may the Participant designate, directly or indirectly, the calendar year of any payment to be made hereunder; and (b) notwithstanding any other provision of this Agreement to the contrary, a Termination of Employment hereunder shall mean and be interpreted consistent with a “separation from service” within the meaning of Code Section 409A with respect to any payment hereunder that constitute a “deferral of compensation” under Code Section 409A that becomes due on account of such separation from service. - 6 -

EX-99.906CERT CERTIFICATIONS W. Whitfield Gardner, Principal Executive Officer, and Mark J. Seger, Principal Financial Officer, of Gardner Lewis Investment Trust (the “Registrant”), each certify to the best of his knowledge that: 1. The Registrant’s periodic report on Form N-CSR for the period ended October 31, 2011 (the “Form N-CSR”) fully complies with the requirements of section 13(a) or section 15(d) of the Securities Exchange Act of 1934, as amended; and 2. The information contained in the Form N-CSR fairly presents, in all material respects, the financial condition and results of operations of the Registrant. PRINCIPAL EXECUTIVE OFFICER PRINCIPAL FINANCIAL OFFICER Gardner Lewis Investment Trust Gardner Lewis Investment Trust /s/ W. Whitfield Gardner /s/ Mark J. Seger W. Whitfield Gardner, Chairman and Mark J. Seger, Treasurer Chief Executive Officer Date:December 28, 2011 Date:December 28, 2011 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 Gardner Lewis Investment Trust and will be retained by Gardner Lewis Investment Trust and furnished to the Securities and Exchange Commission or its staff upon request. This certification is being furnished to the Securities and Exchange Commission solely pursuant to 18 U.S.C. 1350 and is not being filed as part of the Form N-CSR filed with the Securities and Exchange Commission.

Exhibit 10.1 AGREEMENT           This Agreement (“the Agreement”) is made as of December 11, 2008 by and among CANARGO ENERGY CORPORATION, a Delaware Corporation (the “Issuer”), and PERSISTENCY, a Cayman Islands limited company (the “Holder”).           WHEREAS, the Issuer and the Holder have entered into a certain Note and Warrant Purchase Agreement dated June 28, 2006 (the “Purchase Agreement”) relating to the 12% Subordinated Convertible Guaranteed Notes, due June 28, 2010 (the “Subordinated Notes”) of the Issuer;           WHEREAS, the Holder is the holder 100% of the issued and outstanding Subordinated Notes;           WHEREAS, pursuant to Section 11.7 of the Purchase Agreement, the Subordinated Notes are convertible into common stock, par value $0.10 per share (the “Common Stock”) of the Issuer at a price and subject to the terms and conditions of the Agreement;           WHEREAS; the Issuer and the Holder have agreed to change certain of the terms and conditions of the Note Purchase Agreement and the Subordinated Notes issued thereunder applicable to the Holder’s investment in the Subordinated Notes, as set forth herein.           NOW THEREFORE, in consideration of the mutual covenants herein contained, and for such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:   1.   Subject to Section 2 of this Agreement and absent the prior written consent of the Issuer, the Holder hereby agrees and covenants that prior to March 20, 2009 it will not convert or exchange, or seek to convert or exchange, any or all of the Subordinated Notes into shares of Common Stock of the Issuer, or into any other security convertible or exchangeable into shares of Common Stock of the Issuer, pursuant to Section 11.7 of the Note Agreement.     2.   Notwithstanding Section 1. of this Agreement, nothing herein shall be deemed to prohibit the Holder from exercising its rights pursuant to Section 11.7 of the Note Agreement in the event of:   (a)   The occurrence of the Event of Default within the meaning of Section 13 of the Purchase Agreement occurs and all the Subordinated Notes then outstanding become immediately due and payable as provided in Section 14.1 of the Purchase Agreement; or     (b)   The Occurrence of a Change of Control within the meaning of Section 10.6(g) of the Purchase Agreement, other that a Change of Control resulting from one or more of the transactions set forth in Section 10.6(g)(b) of the Purchase Agreement to which the Holder or the affiliate of the Holder is a party.       3.   Except as modified hereby, all of the terms and conditions of the Purchase Agreement shall remain in full force and effect. Capitalized terms not defined herein shall have the meanings given them in the Purchase Agreement.     4.   This Agreement shall become effective immediately upon the execution of this Agreement by each of the parties hereto and shall inure to the benefit of and shall be binding upon the Holder and its Affiliates.      WITNESS the due execution hereof as of the day and year first written above.                       CANARGO ENERGY CORPORATION       PERSISTENCY                           By:           By:                               Name:           Name:         Title:           Title:          

Name: 92/430/EEC: Commission Decision of 15 July 1992 drawing up a list of border inspection posts preselected for veterinary checks on products from third countries Type: Decision_ENTSCHEID Subject Matter: trade policy; cooperation policy; agricultural policy Date Published: 1992-08-20 Avis juridique important|31992D043092/430/EEC: Commission Decision of 15 July 1992 drawing up a list of border inspection posts preselected for veterinary checks on products from third countries Official Journal L 237 , 20/08/1992 P. 0016 - 0022COMMISSION DECISION of 15 July 1992 drawing up a list of border inspection posts preselected for veterinary checks on products from third countries (92/430/EEC)THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Directive 90/675/EEC of 10 December 1990 laying down the principles governing the organization of veterinary checks on products entering the Community from third countries (1), as amended by Directive 91/496/EEC (2), and in particular Article 30 thereof, Whereas the national authorities of the Member States have submitted to the Commission lists of border inspection posts that are to carry out veterinary checks on products from third countries; Whereas, in line with Article 9 (3) of Directive 90/675/EEC, arrangements have been made between the Commission and the national authorities of the Member State to verify that the border inspection posts proposed are in a position to do the checking work laid down by Directive 90/675/EEC; Whereas, in line with Article 9 (4) of the said Directive, the border inspection posts must be inspected by the Commission in cooperation with the national authorities before approval can be granted; Whereas it would appear appropriate to allow the national authorities a period in which to bring these border inspection posts into line with all the requirements for their approval; whereas nonetheless as a transitional measure a list of preselected border posts should be compiled before the list of approved posts is drawn up; Whereas during this transitional period the standard of these shortlisted border posts should be assessed and any appropriate measures to promote their improvement put in hand; Whereas new posts may be proposed for addition to the list; whereas some posts may appear on the list only for inspection of certain products; Whereas establishment of this list is without prejudice to the provisions of Article 17 of Directive 90/675/EEC dealing with establishment of the rules applicable to imports into certain parts of the territory of the Community in order to take account of constraints specific to these; Whereas the measures provided for by this Decision are in accordance with the opinion of the Standing Veterinary Committee, HAS ADOPTED THIS DECISION: Article 1 Veterinary checks on products from third countries brought into the Community shall be carried out by the competent national authorities at the border inspection posts listed in the Annex to this Decision. Article 2 1. Before 30 June 1993 each border inspection post listed in the Annex shall be inspected by the Commission in cooperation with the national authorities. 2. If necessary a programme to correct deficiencies found shall be drawn up and implemented to a precise timetable. Article 3 Member states may, observing the requirements set out in Article 9 (3) of Directive 90/675/EEC, to propose that other border inspection posts be added to the list annexed to this Decision. Article 4 This Decision shall be reviewed, at the latest one year after its date of entry into force, after the inspection visits mentioned in Article 2 have been completed and a general report presented to the Standing Veterinary Committee. Article 5 This Decision shall apply from 1 July 1992. Article 6 This Decision is addressed to the Member States. Done at Brussels, 15 July 1992. For the Commission Ray MAC SHARRY Member of the Commission (1) OJ No L 373, 31. 12. 1990, p. 1. (2) OJ No L 268, 24. 9. 1991, p. 56. ANNEX List of border inspection posts preselected for veterinary checks on products from third countries brought into the Community Name (Town) Sea Air Road and/or rail BELGIUM Antwerpen à — à — Gent à — Oostende à — à — Charleroi-Gosselies à — Zeebrugge à — Zaventem à — Name (Town) Sea Air Road and/or rail DENMARK Koebenhavn à — à — AArhus à — AAlborg à — Esbjerg à — Fredericia (*) à — Nykoebing Mors (*) à — Randers (*) à — Roskilde (*) à — (*) Fish only (Article 18 (4) of Directive 90/675/EEC) Name (Town) Sea Air Road and/or rail GERMANY Stuttgart à — Weil/Rhein à — Bietingen à — Muenchen à — Furth im Wald - Schafberg à — Schirnding-Landstrasse à — Waidhaus à — Suben-Autobahn à — Lindau-Hoerbranz-Autobahn à — Kiefersfelden-Autobahn à — Berlin-Tegel à — Frankfurt/Oder à — Forst à — Schoenefeld à — Bremen à — à — Bremerhaven à — Hamburg à — à — Frankfurt/Main à — Pomellen à — Sassnitz à — Rostock à — Brake à — Cuxhaven à — Langenhagen à — Duesseldorf à — Dortmund à — Koeln à — Muelheim à — Muenster/Versmold à — Zinnwald à — Schoenberg à — Kiel à — Luebeck à — Erfurt à — Bad Reichenhall à — Name (Town) Sea Air Road and/or rail GREECE Hellinikon (Athina) à — Piree à — Patra à — Volos à — Thessaloniki à — à — Idomeni à — Evzoni à — Neos Kafkassos à — Promachon à — Gefira Kipon à — Kakavia à — Igoumenitsa à — Rodos à — à — Name (Town) Sea Air Road and/or rail SPAIN Alicante à — à — Bilbao, Pasajes, Irà ºn à — à — Santander à — à — La Coruà ±a y Santiago de Compostela à — à — Vigo, Villagarcà ­a de Arosa à — à — Cà ¡diz-Algeciras à — Mà ¡laga à — à — Almerà ­a à — à — Valencia à — à — Tarragona à — Palma de Mallorca (Baleares) à — à — Madrid à — Sevilla à — à — Gijà ³n à — à — Cartagena à — Barcelona à — à — Huelva à — Santa Cruz de Tenerife à — à — Las Palmas de Gran Canaria à — à — Name (Town) Sea Air Road and/or rail FRANCE Boulogne à — Dunkerque à — Le Havre à — Saint-Malo à — Brest à — à — Concarneau-Douarnenez à — Nantes-Saint-Nazaire à — à — Bordeaux à — à — Sà ¨te à — Marseille (port) à — Lorient à — à — Roissy Charles de Gaulle à — Orly à — Marseille-Marignane à — Lyon-Satolas à — Nice à — Toulouse-Blagnac à — Saint-Louis à — à — Saint-Julien à — Name (Town) Sea Air Road and/or rail IRELAND Dublin à — à — Cork à — à — Shannon à — Waterford à — Galway (*) à — Killybeys (*) à — (*) Fish only (Article 18 (4) of Directive 90/675/EEC) Name (Town) Sea Air Road and/or rail ITALY Olbia à — Torino à — Salerno à — Chiasso à — Reggio Calabria à — à — Milano Linate à — La Spezia à — Milano Malpensa à — Bologna à — C. PO Trans à — Verona à — Fortezza à — Lamezia Terme à — Pontebba à — Gorizia à — à — Gaeta à — Prosecco à — Trieste à — Venezia à — Ancona à — Name (Town) Sea Air Road and/or rail Bari à — à — Genova à — Livorno à — Roma Fiumicino à — Napoli à — à — Porto Torres à — Palermo à — à — Catania à — à — Cagliari à — Ciampino à — à — Mazara del Vallo à — Name (Town) Sea Air Road and/or rail LUXEMBOURG Luxembourg à — Name (Town) Sea Air Road and/or rail NETHERLANDS Amsterdams havengebied à — à — Rotterdams havengebied à — à — Maastricht à — Delfzijl à — Eemshaven à — Harlingen à — Scheveningen à — Den Helder à — Vlissingen à — Terneuzen à — Lauwersoog (*) à — Urk (*) à — Den Oever (*) à — Goedereede-Stellendam (*) à — Colijnsplaat (*) à — Breskens (*) à — Eindhoven à — (*) Fish only (Article 18 (4) of Directive 90/675/EEC) Name (Town) Sea Air Road and/or rail PORTUGAL Viana do Castelo (*) à — Porto à — à — Aveiro (*) à — Lisboa à — à — Funchal/Madeira à — à — Praia da Vità ³ria à — à — Ponta Delgada à — à — (*) Fish only (Article 18 (4) of Directive 90/675/EEC) Name (Town) Sea Air Road and/or rail UNITED KINGDOM Birmingham à — Dover à — London port à — London airports à — Solent à — Humber à — Bristol à — Felixstowe à — New Haven à — Liverpool à — Heysham à — Tyne à — Holyhead à — Fishguard à — Cardiff à — Teesport à — Grangemouth à — Clyde à — à — Stansted à — Manchester à — à — Norwich à — à — Scrabster à — Belfast à — à — Aberdeen à — à — Weymouth à — Falmouth à — Invergordon à — Mostyn à — Lerwick (*) à — (*) Fish only (Article 18 (4) of Directive 90/675/EEC)

Exhibit 10.9 SECOND AMENDED AND RESTATED GUARANTY AGREEMENT THIS SECOND AMENDED AND RESTATED GUARANTY AGREEMENT , dated as of August 20, 2015 (together with any amendments or supplements hereto, this “ Guaranty Agreement ”), by PROTEIN FINANCE COMPANY , a Delaware corporation, OMEGA SHIPYARD, INC. , a Delaware corporation, PROTEIN INDUSTRIES , INC. , a Delaware corporation, CYVEX NUTRITION, INC. , a California corporation, INCON PROCESSING, L.L.C. , a Delaware limited liability company , and WISCONSIN SPECIALTY PROTEIN, LLC , a Wisconsin limited liability company (herein whether singular or plural referred to as “ Guarantor ”), in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION , a national banking association, as Administrative Agent (“Administrative Agent”) for itself and the lenders (collectively, “ Lenders ”) who are or may become a party to the Loan Agreement defined in RecitalB below . W I T N E S S E T H : A.Omega Protein Corporation, a Nevada corporation (the “ Company ”), and Omega Protein, Inc., a Virginia corporation (“

Exhibit 10.1 January 5, 2016 [Executive Name Executive Home Address Executive Home Address] Dear [Executive]: Reference is made to the Employment Agreement dated as of November 1, 2004, as amended in a letter amendment dated as of December 23, 2008, between you and AEP Industries Inc. (the “Employment Agreement”), and which is hereby further amended as provided below. Capitalized terms used but not defined in this letter shall have the meaning specified in the Employment Agreement.     1. The pre-amble (first paragraph) of the Employment Agreement shall be deleted and replaced with the following paragraph:        This Employment Agreement, dated May 9, 2005, (and amended in letter amendments dated December 23, 2008 and January 5, 2016), by and between AEP Industries Inc., a Delaware corporation having its offices at 95 Chestnut Ridge Road, Montvale, New Jersey 07645 (the “Company”), and Executive Name (the “Executive”), presently residing at Executive Home Address, is entered into and shall be effective as of November 1, 2004 (the “Effective Date”.)     2. The following language in Section 4(a)(i) shall be deleted: “[Q: change re: termination by the Company without Cause, e.g. downsize]”.     3. The following language in Section 4(b) shall be deleted: “[Company Policy must be written]”.     4. The following language in Section 10(e) shall be deleted: “[Q-add: except that Executive shall be entitled to be reimbursed for his reasonable legal fees if he is successful in enforcing the provisions requiring payment by the Company.]” [Executive Name] January 5, 2016 Page Two     5. The second paragraph of Section 10(g) shall be deleted and replaced with the following paragraph: AEP Industries Inc. 95 Chestnut Ridge Road, Montvale, NJ 07645 Facsimile: (201) 807-6801 Attention: Paul M. Feeney Executive Vice President, Finance and Chief Financial Officer Honigman Miller Schwartz and Cohn LLP 660 Woodward Avenue, 2290 First National Building, Detroit, MI 48226-3506 Facsimile: (313) 465-7317 Attention: Michael S. Ben, Esq. If to the Executive, to Executive’s address set forth on the revised ‘Exhibit A’ signature page hereto.     6. ‘EXHIBIT A, Executive Data Sheet for Signature Page’ shall be deleted and replaced with the attached ‘EXHIBIT A, Executive Data Sheet for Signature Page, Revised January 5, 2016 The Employment Agreement, as hereby amended, shall remain in full force and effect.   Very truly yours, AEP Industries Inc. By:     Its:   The Above is Agreed to And Accepted:   [Executive Name]

Name: 94/1006/EC: Commission Decision of 9 December 1994 on the approval of the Single Programming Document for Community structural assistance in the region of Zuidoost-Brabant concerned by Objective 2 in the Netherlands (Only the Dutch text is authentic) Type: Decision_ENTSCHEID Subject Matter: regions and regional policy; economic policy; EU finance; regions of EU Member States; cooperation policy Date Published: 1994-12-31 Avis juridique important|31994D100694/1006/EC: Commission Decision of 9 December 1994 on the approval of the Single Programming Document for Community structural assistance in the region of Zuidoost-Brabant concerned by Objective 2 in the Netherlands (Only the Dutch text is authentic) Official Journal L 382 , 31/12/1994 P. 0021 - 0023COMMISSION DECISION of 9 December 1994 on the approval of the Single Programming Document for Community structural assistance in the region of Zuidoost-Brabant concerned by Objective 2 in the Netherlands (Only the Dutch text is authentic) (94/1006/EC)THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (1), as amended by Regulation (EEC) No 2082/93 (2), and in particular Article 10 (1) last subparagraph thereof, After consultation of the Advisory Committee on the Development and Conversion of Regions and the Committee pursuant to Article 124 of the Treaty, Whereas the programming procedure for structural assistance under Objective 2 is defined in Article 9 (8) to (10) of Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (3), as amended by Regulation (EEC) No 2081/93 (4); whereas, however, the last subparagraph of Article 5 (2) of Regulation (EEC) No 4253/88 foresees that in order to simplify and to speed up programming procedures, Member States may submit in a Single Programming Document the information required for the regional and social conversion plan referred to in Article 9 (8) of Regulation (EEC) No 2052/88 and the information required at Article 14 (2) of Regulation (EEC) No 4253/88; whereas Article 10 (1) last subparagraph of Regulation (EEC) No 4253/88 foresees that in that case the Commission adopts a single decision in a Single Document covering the points referred to in Article 8 (3) and the assistance from the Funds referred to in the last subparagraph of Article 14 (3); Whereas the Commission has established, by Decision 94/169/EC (5), an initial list of declining industrial areas concerned by Objective 2 for the period 1994 to 1996; Whereas the Dutch Government has submitted to the Commission on 26 April 1994 the Single Programming Document referred to in Article 5 (2) of Regulation (EEC) No 4253/88 for the region of Zuidoost-Brabant; whereas this document contains the elements referred to in Article 9 (8) of Regulation (EEC) No 2052/88 and in Article 14 (2) of Regulation (EEC) No 4253/88; whereas expenditure under this Single Programming Document is eligible pursuant to Article 33 (2) of Regulation (EEC) No 4253/88, from 1 January 1994; Whereas the Single Programming Document submitted by this Member State includes a description of the conversion priorities selected and the applications for assistance from the European Regional Development Fund (ERDF) and the European Social Fund (ESF) as well as an indication of the planned use of the assistance available from the European Investment Bank (EIB) and the other financial instruments in implementing the Single Programming Document; Whereas, in accordance with Article 3 of Regulation (EEC) No 4253/88, the Commission is charged with ensuring, within the framework of the partnership, coordination and consistency between assistance from the Funds and assistance provided by the EIB and the other financial instruments, including the ECSC and the other actions for structural purposes; Whereas the EIB has been involved in the drawing up of the Single Programming Document in accordance with the provisions of Article 8 (1) of Regulation (EEC) No 4253/88, applicable by analogy in the establishment of the Single Programming Document; whereas it has declared itself prepared to contribute to the implementation of this document in conformity with its statutory provisions; whereas, however, it has not yet been possible to evaluate precisely the amounts of Community loans corresponding to the financial needs; Whereas Article 2 second subparagraph of Commission Regulation (EEC) No 1866/90 of 2 July 1990 on arrangements for using the ecu for the purpose of the budgetary management of the Structural Funds (1), as last amended by Regulation (EC) No 2745/94 (2), stipulates that in the Commission Decisions approving a Single Programming Document, the Community assistance available for the entire period and the annual breakdown thereof shall be set out in ecus at prices for the year in which each Decision is taken and shall be subject to indexation; whereas this annual breakdown must be compatible with the progressive increase in the commitment appropriations shown in Annex II to Regulation (EEC) No 2052/88; whereas indexation is based on a single rate per year, corresponding to the rates applied annually to budget appropriations on the basis of the mechanism for the technical adjustment of the financial perspectives; Whereas Article 1 of Council Regulation (EEC) No 4254/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Regional Development Fund (3), as amended by Regulation (EEC) No 2083/93 (4), defines the measures for which the ERDF may provide financial support; Whereas Article 1 of Council Regulation (EEC) No 4255/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Social Fund (5), as amended by Regulation (EEC) No 2084/93 (6), defines the measures for which the ESF may provide financial support; Whereas the Single Programming Document has been established in agreement with the Member State concerned through the partnership defined in Article 4 of Regulation (EEC) No 2052/88; Whereas certain measures planned under this Single Programming Document include the part-financing of aid schemes which have not yet been approved by the Commission; whereas no expenditure is foreseen for these aid schemes in 1994; Whereas the present assistance satisfies the conditions laid down in Article 13 of Regulation (EEC) No 4253/88, and so should be implemented by means of an integrated approach involving finance from more than one Fund; Whereas Article 1 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (7), as last amended by Regulation (ECSC, EC, Euratom) No 2730/94 (8), states that the legal commitments entered into for measures extending over more than one financial year must contain a time limit for implementation which must be specified to the recipient in due form when the aid is granted; Whereas all the other conditions laid down for the grant of aid from the ERDF and the ESF have been complied with, HAS ADOPTED THIS DECISION: Article 1 The Single Programming Document for Community structural assistance in the region of Zuidoost-Brabant concerned by Objective 2 in the Netherlands, covering the period 1 January 1994 to 31 December 1996, is hereby approved. Article 2 The Single Programming Document includes the following essential elements: (a) a statement of the main priorities for joint action, their specific quantified objectives, an appraisal of their expected impact and their consistency with economic, social and regional policies in the Netherlands; the main priorities are: 1. strengthening the industrial fabric, 2. tourism and business environment; (b) the assistance from the Structural Funds as referred to in Article 4; (c) the detailed provisions for implementing the Single Programming Document comprising: - the procedures for monitoring and evaluation, - the financial implementation provisions, - the rules for compliance with Community policies; (d) the procedures for verifying additionality and an initial evaluation of the latter; (e) the arrangements for associating the environmental authorities with the implementation of the Single Programming Document; (f) the means available for technical assistance necessary for the preparation, implementation or adaptation of the measures concerned. Article 3 For the purpose of indexation, the annual breakdown of the global maximal allocation foreseen for the assistance from the Structural Funds is as follows: >TABLE>Article 4 The assistance from the Structural Funds granted to the Single Programming Document amounts to a maximum of ECU 67,0 million. The procedure for granting the financial assistance, including the financial contribution from the Funds to the various priorities and measures, is set out in the financing plan and the detailed implementing provisions which form an integral part of the Single Programming Document. The national financial contribution envisaged, which is approximately ECU 79 million for the public sector and ECU 25 million for the private sector, may be met in part by Community loans, in particular from the ECSC and EIB. Article 5 1. The breakdown among the Structural Funds of the total Community assistance available is as follows: - ERDF:ECU 47,00 million, - ESF:ECU 20,00 million. 2. The budgetary commitments for the first instalment are as follows: - ERDF:ECU 15,00 million, - ESF:ECU 6,40 million. Commitments of subsequent instalments will be based on the financing plan for the Single Programming Document and on progress in its implementation. Article 6 The breakdown among the Structural Funds and the procedure for the grant of the assistance may be altered subsequently, subject to the availability of funds and the budgetary rules, in the light of adjustments decided according to the procedure laid down in Article 25 (5) of Regulation (EEC) No 4253/88. Article 7 This Decision is without prejudice to the Commission's position on the aid schemes in the measure I.2. In accordance with Articles 92 and 93 of the Treaty, the aid schemes must be approved by the Commission. No expenditure for these aid schemes is foreseen by the authorities of the Member State in 1994. Article 8 The Community aid concerns expenditure on operations under the Single Programming Document which, in the Member State concerned, are the subject of legally binding commitments and for which the requisite finance has been specifically allocated no later than 31 December 1996. The final date for taking account of expenditure on these measures is 31 December 1998. Article 9 The Single Programming Document shall be implemented in accordance with Community law, and in particular Articles 6, 30, 48, 52 and 59 of the EC Treaty and the Community Directives on the coordination of procedures for the award of contracts. Article 10 This Decision is addressed to the Kingdom of the Netherlands. Done at Brussels, 9 December 1994. For the Commission Bruce MILLAN Member of the Commission (1) OJ No L 374, 31. 12. 1988, p. 1. (2) OJ No L 193, 31. 7. 1993, p. 20. (3) OJ No L 185, 15. 7. 1988, p. 9. (4) OJ No L 193, 31. 7. 1993, p. 5. (5) OJ No L 81, 24. 3. 1993, p. 1. (1) OJ No L 170, 3. 7. 1990, p. 36. (2) OJ No L 290, 11. 11. 1994, p. 4. (3) OJ No L 374, 31. 12. 1988, p. 15. (4) OJ No L 193, 31. 7. 1993, p. 34. (5) OJ No L 374, 31. 12. 1988, p. 21. (6) OJ No L 193, 31. 7. 1993, p. 39. (7) OJ No L 356, 31. 12. 1977, p. 1. (8) OJ No L 293, 12. 11. 1994, p. 7.

UNITED STATES
 SECURITIES AND EXCHANGE COMMISSION
 Washington, D.C. 20549 FORM 6-K Report of Foreign Issuer Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934 For the month of May, 2014 Commission File Number 000-54420 SILVERCREST MINES INC.
 (Translation of registrant’s name into English) Suite 501, 570 Granville Street Vancouver, British Columbia, Canada V6C 3P1
 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F Form 20-F [ ] Form 40-F [ x ] Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): [ ] Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders. Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): [ ] Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. SILVERCREST MINES INC. /s/ N. Eric Fier Date: May 2, 2014 N. Eric Fier President and COO INDEX TO EXHIBITS ANNUAL GENERAL MEETING OF SHAREHOLDERS INFORMATION CIRCULAR NOTICE OF ANNUAL GENERAL MEETING OF SHAREHOLDERS NOTICE AND ACCESS NOTIFICATION TO SHAREHOLDERS FINANCIAL STATEMENTS REQUEST FORM FORM OF PROXY

Exhibit 10.2 WAIVER AND THIRD AMENDMENT TO CREDIT AGREEMENT                This WAIVER AND THIRD AMENDMENT TO CREDIT AGREEMENT ("Amendment") is dated as of September 26, 2001  and is entered into by and between Cherokee International, LLC, a California limited liability company (“Borrower”), Heller Financial, Inc., in its capacity as Agent for the Lenders party to the Credit Agreement described below (“Agent”), and the Lenders which are signatories hereto.              WHEREAS, Agent, Lenders and Borrower are parties to a certain Credit Agreement dated as of April 30, 1999, as amended by that certain Consent, Waiver and First Amendment to Credit Agreement, dated as of June 15, 2000, and as further amended by that certain Second Amendment to Credit Agreement dated as of March 30, 2001 (as such agreement has from time to time been further amended, supplemented or otherwise modified, the "Agreement");and              WHEREAS,  the Borrower is in default under various provisions of the Agreement, which defaults (collectively, the “Existing Events of Default”) constitute Events of Default under the Agreement.  A list of the Existing Events of Default is attached hereto as Exhibit A; and              WHEREAS, the Existing Events of Default have been waived through September 26, 2001 pursuant to that certain Waiver and Forbearance Agreement dated as of August 14, 2001, as amended by that certain First Amendment to Waiver and Forbearance Agreement dated as of September 14, 2001, among Borrower, Agent and the Lenders signatories thereto; and              WHEREAS, the parties desire to amend the Agreement as hereinafter set forth.              NOW THEREFORE, in consideration of the mutual conditions and agreements set forth in the Agreement and this Amendment, and other good and acknowledged,  the parties hereto hereby agree as follows:              1.          Definitions.  Capitalized terms used in this Amendment, unless otherwise defined herein, shall have the meaning ascribed to such terms in the Agreement.              2.          Amendments.  Subject to the conditions set forth below, the Agreement is amended as follows:              (a)         Subsection 1.1(B)(1) is amended by deleting the following sentence from such subsection: The “Maximum Revolving Loan Balance” will be the lesser of (a) the “Borrowing Base” (as calculated on Exhibit 4.6(F), the “Borrowing Base Certificate”) less outstanding Risk Participation Liability or (b) the Revolving Loan Commitment less outstanding Risk Participation Liability.              (b)        Subsection 1.1(B)(2) is amended by adding the following sentence to the end of such subsection: Subject to the terms of this Agreement (including, without limitation to the preceding sentence), the Lenders agree to provide Overadvance Revolving Loans to the Borrower during the period from the Third Amendment Effective Date through December 31, 2002 in an amount not to exceed $2,500,000.  Notwithstanding anything contained in this Agreement to the contrary, the Base Rate Margin and the LIBOR Margin applicable to such Overadvance Revolving Loans shall be equal to 2% in excess of the Base Rate Margin and LIBOR Margin otherwise applicable to Revolving Loans in accordance with the Pricing Table set forth in Subsection 1.2(A) hereof. Unless an earlier maturity is provided for herein, such Overadvance Revolving Loans shall be due and payable on December 31, 2002.              (c)         Subsection 2.9 is amended by deleting such subsection in its entirety and inserting the following in lieu thereof: 2.9        Post-Closing Items.   Within thirty (30) days of the Closing Date the Borrower will deliver to the Agent the items numbered 2 and 3 in the definition of Post-Closing Documents and within sixty (60) days of the Closing Date the Borrower will deliver to the Agent the item numbered 4 in the definition of Post-Closing Documents.  By October 15, 2001 the Borrower will deliver to the Agent the item numbered 1 in the definition of Post-Closing Documents.  Within thirty (30) days of the Third Amendment Effective Date the Borrower will deliver to the Agent the item numbered 5 in the definition of Post-Closing Documents.              (d)        Subsection 3.1(B)(d) is amended by replacing the amount “$5,000,000” appearing in such subsection with the amount “$6,500,000”.              (e)         Subsection 3.3(L) is amended by replacing the amount “$3,500,000” appearing in such subsection with the amount “$2,000,000”.              (f)         Subsection 3.5(A) is amended by deleting such subsection in its entirety and inserting the following in lieu thereof: (A)       Borrower may make Permitted Tax Distributions and Permitted Distributions for Pre-Closing Tax Liabilities, provided that from and after the Third Amendment Effective Date until the Permitted Tax Distribution Trigger Date, the Borrower may not make Permitted Tax Distributions.  On or after the Permitted Tax Distribution Trigger Date, Borrower may make Restricted Junior Payments in an amount equal to the amount of Permitted Tax Distributions which Borrower was not permitted to make prior to the Permitted Tax Distribution Trigger Date so long as Borrower can demonstrate on a pro forma basis that, after giving effect to the making of such Restricted Junior Payments, it will be in compliance with the financial covenants set forth in Sections 4.3, 4.4 and 4.5 herein.              (g)        Subsection 3.5(D) is amended by deleting such subsection (D)        Borrower may make payments (but not prepayments) of scheduled interest and principal in accordance with the terms of the Subordinated Notes, provided, that the Borrower may not make or permit to be made the interest payment on the Subordinated Notes scheduled to be made in November, 2002 unless no Default or Event of Default has occurred and is continuing and the Subordinated Interest Payment Threshold will be satisfied as of September 30, 2002.              (h)        Section 3 is amended by inserting the following new Subsection at the end of such Section: 3.16      MAS Timeline.   Borrower shall cause the milestones set forth in the MAS Timeline to be achieved on or prior to the applicable date for such milestone set forth in the MAS Timeline.              (i)          Section 4.1 of the Credit Agreement is amended by amending such section in its entirety to be and to read as follows: 4.1        Capital Expenditure Limits.   Borrower shall not permit the aggregate amount of all Capital Expenditures of Borrower and its Subsidiaries to exceed (the “Capex Limit”) for each calendar year after 2000, $4,600,000 annually plus 10% of the amount of EBITDA for such calendar year (and not on Pro Forma EBITDA) in excess of $48 million.              (j)          Section 4.3 of the Credit Agreement is amended by 4.3        Fixed Charge Coverage. Borrower shall not permit the Fixed Charge Coverage on the last day of any fiscal quarter ending during any of the periods set forth below to be less than the Fixed Charge Coverage set forth below for such period: Period Minimum Fixed Charge Coverage 9/30/01 0.62x 12/31/01 0.54x 3/31/02 0.43x 6/30/02 0.56x 9/30/02 0.81x 12/31/02 1.05x 3/31/03 1.05x 6/30/03 1.05x 9/30/03 1.05x 12/31/03 1.10x Thereafter 1.10x   “Fixed Charge Coverage” will be calculated as illustrated on Exhibit 4.6(D).              (k)         Section 4.4 of the Credit Agreement is amended by 4.4        Total Interest Coverage. Borrower shall not permit the Total Interest set forth below to be less than the Total Interest Coverage set forth below for such period: Period Minimum Total Interest Coverage 9/30/01 1.10x 12/31/01 0.88x 3/31/02 0.71x 6/30/02 0.87x 9/30/02 1.26x 12/31/02 1.70x 3/31/03 2.00x 6/30/03 2.25x 9/30/03 2.40x 12/31/03 2.45x Thereafter 2.75x “Total Interest Coverage” will be calculated as illustrated on Exhibit 4.6(D).              (l)          Section 4.5 of the Credit Agreement is amended by 4.5        Total Indebtedness to Pro Forma EBITDA Ratio. Borrower shall not permit the Total Indebtedness to Pro Forma EBITDA Ratio calculated as of the last day of any fiscal quarter for any of the periods set forth below to be greater than the Total Indebtedness to Pro Forma EBITDA Ratio set forth below for such period: Period Maximum Total Indebtedness to Pro Forma  EBITDA Ratio 9/30/01 7.16x 12/31/01 9.92x 3/31/02 11.40x 6/30/02 9.53x 9/30/02 6.71x 12/31/02 5.25x 3/31/03 4.45x 6/30/03 4.05x 9/30/03 3.80x 12/31/03 3.75x 3/31/04 3.50x 6/30/04 3.25x Thereafter 3.00x              (m)        Section 4 of the Credit Agreement is amended by read as follows: 4.8        Sponsor Obligations. The parties agree that the Sponsor Guaranties and the Sponsor Collateral constitute Security Documents.  Any proceeds obtained by Agent or Borrower from the Sponsor Guaranties  and the Sponsor Collateral shall be applied as a prepayment, to be applied first in prepayment of the Term Loans, pro rata against all remaining scheduled installments, and if the Term Loans shall have been repaid in full, then in prepayment of the Revolving Loan, unless such proceeds relate to an Event of Default under Section 6.1(A) in which case such proceeds shall be applied to cure such Event of Default.              (n)        Section 6.5 of the Credit Agreement is amended by deleting such Section in its entirety and inserting the following in lieu thereof: 6.5        Financial Covenant Defaults. In the event of a violation of any of the financial covenants set forth in Sections 4.3, 4.4 and 4.5 herein, unless the Requisite Lenders have waived such violation in writing, during the 15-day period immediately following the day on which Borrower was required to deliver to Agent the financial statements and certificates for the quarter with respect to which a violation occurred:  (a) the Lenders shall not be required to make any Loans to Borrower; (b) the Agent may not accelerate the repayment of the Loans unless there exists any other Event of Default that has not been cured or waived in writing by the Requisite Lenders; (c) the Requisite Lenders may at their option exercise their right to impose default interest as provided for in this Agreement; and (d) Borrower may cure any such financial covenant default by arranging for its shareholders or other Persons to make an equity contribution of cash to Borrower or a payment under the Sponsor Guaranties (prior to the Sponsor Release Date or the date on which the Sponsor Guaranties have been terminated) in an amount necessary to bring Borrower into compliance with all financial covenants as of the last day of the quarter as of which a violation occurred, provided however, that a cure by an equity contribution of cash as set forth in this clause (d) may only be exercised twice in any one calendar year and may only be exercised four times prior to the Expiry Date.  Any such equity contribution or payment under the Sponsor Guaranties shall be applied as a prepayment, to be applied first in prepayment of the Term Loans, pro rata against all remaining scheduled installments, and if the Term Loans shall have been repaid in full, then in prepayment of the Revolving Loan.  For purposes of this Section 6.5 only, any such equity contribution of cash or payment under the Sponsor Guaranties made within the 15-day period described above (x) made pursuant to the Sponsor Guaranties (or which reduce the Sponsors’ exposure under the Sponsor Guaranties) and prior to the Sponsor Release Date shall be considered (i) for purposes of determining compliance with Section 4.3 and 4.4, to constitute additional EBITDA earned in the quarter as of which a violation occurred, (ii) for purposes of determining compliance with Section 4.5, to reduce the amount of Total Indebtedness outstanding on the last day of the quarter as of which a violation occurred and (y) made after the Sponsor Release Date shall be considered to constitute additional EBITDA during the immediately preceding quarter; provided that, notwithstanding the foregoing, any equity contributions made prior to the Sponsor Release Date which at the Sponsors’ election evidenced by a writing in form reasonably satisfactory to Agent, will not reduce the Sponsor’s exposure under the Sponsor Guaranties, shall be considered additional EBITDA during the immediately preceding quarter for purposes of determining compliance with Sections 4.3, 4.4 and 4.5.  In the event Borrower does not cure all financial covenant violations as provided in this Section 6.5, there shall exist an Event of Default unless waived by the Requisite Banks in writing.              (o)         Subsection 1.2(A) is amended by replacing the Pricing Table appearing in such subsection with the following Pricing Table: PRICING TABLE   Total Indebtedness to Pro Forma EBITDA Ratio   Base Rate Margin   Base Rate Margin   LIBOR Margin   LIBOR Margin                 Revolving Loans and Term Loan A   Term Loan B   Revolving Loans and Term Loan A   Term Loan B               Greater than or equal to 7.50   2.50%   3.00%   3.75%   4.25%   Greater than or equal to 6.50:1 but less than 7.50:1   2.25%   2.75%   3.50%   4.00%   Greater than or equal to 5.50:1 but less than 6.50:1   2.00%   2.50%   3.25%   3.75%   Greater than or equal to 4.75:1 but less than 5.50:1   1.75%   2.25%   3.00%   3.50%   Greater than or equal to 4.00:1 but less than 4.75:1   1.50%   2.00%   2.75%   3.25%   Greater than or equal to 3.25:1 but less than 4.00:1   1.25%   2.00%   2.50%   3.25%   Less than 3.25:1   1.00%   2.00%   2.25%   3.25%                (p)        Subsection 10.1 is amended by inserting the following definitions in their proper alphabetical order, or, where applicable, replacing an existing definition with the applicable below definition: “Borrowing Base” means the borrowing base calculated pursuant to the Borrowing Base Certificate. “Borrowing Base Certificate” means the certificate to be submitted by the Borrower in the form of Exhibit 4.6(F). “MAS” means Mechanical and Automation Systems, an operating division of Borrower. “MAS Timeline” means that certain timeline delivered by Borrower to Agent on the Third Amendment Effective Date setting forth certain dates by which certain milestones for exploring the potential sale of MAS shall be completed. “Maximum Revolving Loan Balance” shall be determined for the applicable period based upon the below grid: Period   Maximum Revolving Loan Balance   Prior to Third Amendment Effective Date   lesser of (a) the Borrowing Base plus any Overadvance Revolving Loans less outstanding Risk Participation Liability or (b) the Revolving Loan Commitment less outstanding Risk Participation Liability       Third Amendment Effective Date through 10/19/01   lesser of (a) Borrowing Base plus any Overadvance Revolving Loans less outstanding Risk Participation Liability or (b) $15,000,000 less outstanding Risk Participation Liability       10/20/01 – 4/19/02   (A) so long as Borrower makes the scheduled interest payment on the Subordinated Notes due November 1, 2001 (which payment may only be made in accordance with the terms of this Agreement), the lesser of (a) the Borrowing Base plus any Overadvance Revolving Loans less outstanding Risk Participation Liability or (b) $20,000,000 less outstanding Risk Participation Liability, or (B) if Borrower fails to make such interest payment on the Subordinated Notes, the lesser of (a) Borrowing Base plus any Overadvance Revolving Loans less outstanding Risk Participation Liability or (b) $15,000,000 less outstanding Risk Participation Liability       4/20/02 and thereafter   (A) so long as Borrower makes the scheduled interest payment on the Subordinated Notes due November 1, 2001 and May 1, 2002 (which payments may only be made in accordance with the terms of this Agreement), the lesser of (a) the Borrowing Liability or (b) $25,000,000 less outstanding Risk Participation Liability, (B) if Borrower makes either the November 1, 2001 or the May 1, 2002 interest payment but fails to make both interest payments, the lesser of (a) Borrowing Liability or (b) $20,000,000 less outstanding Risk Participation Liability or (C) if Borrower fails to make the November 1, 2001 and the May 1, 2002 interest payments on the Subordinated Notes, the lesser of (a) Borrowing Base plus any Overadvance Revolving Loans less outstanding Risk Participation Liability or (b) $15,000,000 less outstanding Risk Participation Liability “Permitted Tax Distribution Threshold” means the satisfaction of the following as of the last day of any fiscal quarter occurring after the Third Amendment Effective Date: (i) the Fixed Charge Coverage is greater than 1.05x, provided that in calculating Fixed Charges for purposes of this definition no deduction for interest paid in kind shall be made and (ii) the Total Indebtedness to Pro Forma EBITDA Ratio, calculated on a rolling four quarter basis ending on the last day of such fiscal quarter, is less than 5.00x. “Permitted Tax Distribution Trigger Date” means the date on which the Permitted Tax Distribution Threshold is achieved. “Post-Closing Documents” means (1) a pledge agreement, stock power and all other documents necessary for the Agent to obtain, for the benefit of Agent and Lenders, a perfected first priority security interest in the stock of Borrower’s Subsidiary in India,(2) a landlord waiver and consent for each of Borrower’s facilities in Tustin, CA, in form and substance acceptable to Agent, (3) bank agency agreements with each institution at which Borrower and its Domestic Subsidiaries maintain depository accounts, (4) a partial release of the lien filed against the Patel Family Trust with respect to the membership interest of the Borrower held by such trust, and (5) tri-party bank account agreements from each financial institution where the Borrower maintains an account. “Sponsors ” means OCM/GFI Power Opportunities Fund, L.P., OCM Principal Opportunities Fund, L.P., CSFB Cherokee Equity Investors, LLC, Oxford Cherokee Inc., GFI Two LLC and RIT Capital Partners, plc. “Sponsor Guaranties” means those certain Guaranties dated as of Third Amendment Effective Date among Agent and the Sponsors. “Sponsor Collateral” means those certain letters of credit provided by financial institutions having a rating of at least “A-” from Standard & Poor's Corporation or at least “A3” from Moody's Investors Service, Inc., or such other financial institutions as may be acceptable to Agent, on behalf of CSFB Cherokee Equity Investors, LLC, Oxford Cherokee Inc., GFI Two LLC and RIT Capital Partners, plc in an aggregate amount on the Third Amendment Effective Date equal to $2,466,050.18, provided that the letter of credit issued for the account of GFI Two LLC may be issued by American Business Bank. “Sponsor Release Date” means the date on which the Sponsor Release Threshold is achieved. “Sponsor Release Threshold” means the satisfaction of the following as of the last day of any fiscal quarter occurring after the Third Amendment Effective Date: (i) the Fixed Charge Coverage is greater than 1.05x, provided that in calculating Fixed Charges for purposes of this definition no deduction for interest paid in kind shall be made and (ii) the Total Indebtedness to Pro Forma EBITDA Ratio, calculated on a rolling four quarter basis ending on the last day of such fiscal quarter, is less than 4.50x. “Subordinated Interest Payment Threshold” means the satisfaction of the following as of the last day of the fiscal quarter ending September 30, 2002: (i) the Fixed Charge Coverage is greater than 1.05x, provided, that in EBITDA Ratio is less than 5.00x, provided that in calculating Pro Forma EBITDA for purposes of this clause (ii), the Borrower shall not use its Pro Forma EBITDA for the prior four fiscal quarters but instead shall use the product of (x) its Pro Forma EBITDA for the six months ending on September 30, 2002 multiplied by (y) two, provided further, that in calculating Total Indebtedness to Pro Forma EBITDA Ratio for purposes of this clause (ii), the amount of the next scheduled interest payment on the Subordinated Notes shall be treated as Indebtedness of the Borrower outstanding on the last day of the fiscal quarter for which the Subordinated Interest Payment Threshold is being calculated. “Third Amendment Effective Date” means September 26, 2001.              3.          Waiver.            Agent and Lenders hereby waive the Existing Events of Default.  This waiver shall not be deemed to constitute a waiver of any other Event of Default or any future breach of the Agreement or any of the other Loan Documents.              4.          Conditions.  The effectiveness of this Amendment is subject to the following conditions precedent (unless specifically waived in writing by Agent):                            (a)         Borrower shall have executed and delivered this Amendment, and such other documents and instruments as Agent may reasonably require shall have been executed and/or delivered to Agent;                            (b)        All proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be reasonably satisfactory to Agent and its legal counsel;                            (c)         No Default or Event of Default other than the Existing Events of Default shall have occurred and be continuing;                            (d)        Borrower shall have paid Agent for the benefit of Lenders an amendment fee in the amount of $176,154.17, to be paid to each Lender based upon their respective Pro Rata Share (determined in accordance with clause (c) of the definition thereof);                            (e)         Agent shall have received, for the benefit of Lenders, (i) a legal opinion in form and substance reasonably satisfactory to Agent from counsel to each of OCM/GFI Power Opportunities Fund, L.P., and OCM Principal Opportunities Fund, L.P.; and (ii) such financial statements executed by Borrower as Agent may request;                            (f)         Borrower shall have delivered to Agent and Lenders an Excess Cash Flow Certificate in the form of Exhibit 1.5(B) to the Agreement, which certificate shall remove the impact of any purchased working capital and shall otherwise be in form and substance reasonably satisfactory to Agent;                            (g)        Borrower shall have delivered to Agent and Lenders a timeline outlining the stages for exploring the potential sale of Mechanical and Automation Systems, an operating division of Borrower, which outline shall be in form and substance reasonably satisfactory to the Agent;                            (h)        Agent shall have received the Sponsor Collateral, which shall be in form and substance satisfactory to Agent;                            (i)          Agent shall have received financial statements from each Sponsor party to a Sponsor Guaranty not secured by a letter of credit (other than OCM/GFI Power Opportunities Fund, L.P.) demonstrating that such Sponsor is in compliance with its obligations under Section 12 of its Sponsor Guaranty; and                            (j)          Agent shall have received financial statements and a certificate from the general partner of OCM/GFI Power Opportunities Fund, L.P. certifying that it is in compliance with its obligations under Section 12 of its Sponsor Guaranty.              5.          Representations and Warranties.        To induce Agent and Lenders to enter into this Amendment, Borrower represents and warrants to Agent and Lenders:                            (a)         that the execution, delivery and performance of this Amendment has been duly authorized by all requisite limited liability company action on the part of Borrower and that this Amendment has been duly executed and delivered by Borrower; and                            (b)        that each of the representations and warranties set forth in Section 5 of the Agreement (other than those which, by their terms, specifically are made as of certain date prior to the date hereof) are true and correct in all material respects as of the date hereof (after giving effect to this Amendment).              6.          Severability.    Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.              7.          References.     Any reference to the Agreement contained in any  document, instrument or agreement executed in connection with the Agreement shall be deemed to be a reference to the Agreement as modified by this Amendment.              8.          Counterparts.  This Amendment may be executed in one or more counterparts, each of which shall constitute an original, but all of which taken together shall be one and the same instrument.              9.          Ratification.  The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions of the Agreement and shall not be deemed to be a consent to the modification or waiver of any other term or condition of the Agreement.  Except as expressly modified and superseded by this Amendment, the terms and provisions of the Agreement are ratified and confirmed and shall continue in full force and effect.                              IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed under seal and delivered by their respective duly authorized officers on the date first written above.   HELLER FINANCIAL, INC., as Agent and Lender   CHEROKEE INTERNATIONAL, LLC           By: /s/ Jacquelene M. Hermie   By: /s/ R. Van Ness Holland, Jr.                 Title: Vice President   Title: Chief Financial Officer                           BANK  AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.           By:         Title:                     FLEET CAPITAL CORPORATION               By: /s/ Mark D. Newlun                   U.S. BANK               By: /s/ James Mitchell             KEY CORPORATE CAPITAL INC.               By: /s/ Joseph F. Barber             Title: Vice President             FINOVA CAPITAL CORPORATION               By: /s/ Bruce Mettel             Title: Vice President         CONSENT, REAFFIRMATION AND AMENDEMENT              The undersigned (“Guarantor”) hereby (i) acknowledges receipt of a copy of the foregoing Waiver and Third Amendment to Credit Agreement and the Sponsor Guaranties; (ii) consents to Borrower’s execution and delivery thereof; (iii) agrees to be bound thereby; and (iv) affirms that nothing contained therein shall modify in any respect whatsoever its guaranty of the obligations of Borrower to Agent and Lenders pursuant to the terms of that certain Guaranty dated as of April 30, 1999, (the “Guaranty”) and reaffirms that the Guaranty is and shall continue to remain in full force and effect.  Although Guarantor has been informed of the matters set forth herein and has acknowledged and agreed to same, Guarantor understands that Agent and Lenders have no obligation to inform Guarantor of such matters in the future or to seek Guarantor’s acknowledgment or agreement to future amendments or waivers, and nothing herein shall create such a duty.               In addition, in order to induce Lenders to execute the foregoing Waiver and Third Amendment to Credit Agreement, Guarantor hereby agrees that the Guaranty is hereby amended by adding the following language to the end of Section 4 of the Guaranty: “Without limiting the generality, scope or meaning of any of the foregoing or any other provision of this Guaranty, Guarantor: (a)         acknowledges that Section 2856 of the California Civil Code authorizes and validates waivers of a guarantor's rights of subrogation and reimbursement and certain other rights and defenses available to Guarantor under California law; (b)        waives all rights of subrogation, reimbursement, indemnification, and contribution and all other rights and defenses that are or may become available by reason of Sections 2787 to 2855, inclusive, of the California Civil Code; (c)         waives all rights and defenses arising out of an election of remedies by Agent or any Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor's rights of subrogation and reimbursement against Borrower by the operation of Section 580d of the California Code of Civil Procedure or otherwise; (d)        waives all rights and defenses that Guarantor may have because the Borrower’s debt is secured by real property.  This means, among other things:              (i)          Agent and Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrower;              (ii)         If Agent  forecloses on any real property collateral pledged by  Borrower:                            (1)         the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and                            (2)         Agent or any Lender may collect from Guarantor even if Agent, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have because Borrower’s debt is secured by real property.  These rights and defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b, 580d, or 726 of the California Code of Civil Procedure; and (e)         waives all rights and defenses, if any, now or hereafter arising under the laws of the State of Illinois, which are the same as or similar to the rights and defenses waived as described above.”              IN WITNESS WHEREOF, the undersigned has executed this Consent, Reaffirmation and Amendment on and as of the date of such Amendment.     CHEROKEE INTERNATIONAL FINANCE, INC.,     a California corporation           By:    /s/ Ian Schapiro           Name:    Ian Schapiro           Title: Vice President         EXHIBIT A TO AMENDMENT LIST OF EXISTING EVENTS OF DEFAULT UNDER THE CREDIT AGREEMENT 1. Borrower permitting the Fixed Charge Coverage for the fiscal quarter ended June 30, 2001 to be less than 1.0 to 1.0, constituting a breach of subsection 4.3 of the Credit Agreement and an Event of Default pursuant to subsection 6.1(C).     2. Borrower permitting the Total Interest Coverage for the fiscal quarter ended June 30, 2001 to be less than 1.65 to 1.0, constituting a breach of subsection 4.4 of the Credit Agreement and an Event of Default pursuant to subsection 6.1(C).     3. Borrower permitting the Total Indebtedness to Pro Forma EBITDA Ratio for the fiscal quarter ended June 30, 2001 to be greater than 5.25 to 1.0, constituting a breach of subsection 4.5 of the Credit Agreement and an Event of Default pursuant to subsection 6.1(C).     4. Borrower permitting Indebtedness owing by the ITS Companies to non-affiliated third parties in an aggregate amount exceeding $5,000,000, constituting a breach of subsection 3.1(B)(d) of the Credit Agreement and an Event of Default pursuant to subsection 6.1(C).  

  Exhibit 10.3   Confirmation in respect of Repurchase Transaction   April 7, 2015 (amended and restated as of June 6, 2016)   To:Business Development Corporation of America 405 Park Avenue, Floor 3 Attention: Shiloh Bates   From:UBS AG, London Branch   Dear Sirs,   The purpose of this confirmation (this “Confirmation”) is to set forth the terms and conditions of the above-referenced repurchase transaction between Business Development Corporation of America (“Seller”) and UBS AG, London Branch (“Buyer”, and “Party” shall mean either Seller or Buyer), on the Trade Date specified below (the “Transaction”). This Confirmation evidences the Transaction (replacing the form of Confirmation required by Annex II to the Agreement which shall not apply to the Transaction) and forms a binding agreement between you and us as to the terms of the Transaction.   This Confirmation supplements, forms part of, and is subject to the TBMA/ISMA Global Master Repurchase Agreement (2000 version), dated as of March 31, 2015, between Seller and Buyer, together with the Annex(es) thereto (as supplemented, amended or otherwise modified from time to time, the “Agreement”).   With effect from the Second Amendment Effective Date specified below, this Confirmation amends and restates the confirmation dated April 7, 2015 (as amended and restated as of July 10, 2015 and as further amended, supplemented or otherwise modified prior to the date hereof, the “Original Confirmation”) relating to the Transaction described herein, which Original Confirmation (with respect to the period from and after the Second Amendment Effective Date) is hereby superseded and shall be of no further force or effect.   All provisions contained or incorporated by reference in the Agreement shall govern this Confirmation except as expressly modified below. In the event of any inconsistency between the provisions of the Agreement and this Confirmation, this Confirmation will prevail. In this Confirmation, defined words and expressions shall have the same meaning as in the Agreement unless otherwise defined in this Confirmation, in which case terms used in this Confirmation shall take precedence over terms used in the Agreement.   1General Terms   Seller:   Business Development Corporation of America       Buyer:   UBS AG, London Branch       Calculation Agent:   UBS AG, London Branch; provided that if an Event of Default with respect to Buyer has occurred and is continuing, Seller shall be entitled, in its sole discretion, to be the Calculation Agent or to appoint a leading, independent dealer in the relevant market to act as Calculation Agent.           The Calculation Agent shall perform all determinations, calculations or estimates hereunder in good faith and in a commercially reasonable manner and consistent with the manner in which Calculation Agent performs calculations for other similar transactions. All calculations and determinations made by the Calculation Agent in relation to this Transaction pursuant to this Confirmation shall, in the absence of manifest error or as otherwise provided in this Confirmation, be conclusive and binding on Seller and Buyer. For the purpose of making any determination or calculation hereunder, the Calculation Agent may (or, where Third Party Valuations are required under this Confirmation, shall) rely on any information or notice delivered by a third party to the extent such information or notice from a third party is contemplated by the Agreement and the Calculation Agent shall not be liable for any error, incompleteness or omission thereof absent fraud, gross negligence or willful misconduct.       Trade Date:   April 7, 2015.       Amendment Effective Date   July 10, 2015.       Second Amendment Effective Date:   June 6, 2016.       Purchase Dates:   (a) April 7, 2015 (the “First Purchase Date”);           (b) July 10, 2015 (the “Second Purchase Date”); and           (c) June 6, 2016 (the “Third Purchase Date”).       Repurchase Date:   In respect of each Purchased Security, April 7, 2018, subject to adjustment in accordance with the Business Day Convention, as such date may be accelerated as provided herein and in the Agreement.       Purchase Price:   (a) With respect to the Purchased Securities transferred to Buyer on the First Purchase Date, U.S.$150,000,000;           (b) with respect to the Purchased Securities transferred to Buyer on the Second Purchase Date, U.S.$60,000,000; and           (c) with respect to the Purchased Securities transferred to Buyer on the Third Purchase Date, U.S.$22,500,150,   2         in each case as such amount may from time to time be reduced pursuant to the operation of the “Purchase Price Reduction” provisions herein.       Repurchase Price:   With respect to each Purchased Security, the Purchase Price for such Purchased Security as of the relevant Repurchase Date, provided however that, for the purposes of the definitions of “Purchased Securities Exposure Amount” and “Net Transaction Exposure”, (a) the aggregate Repurchase Price of all the Purchased Securities shall be: (i) with respect to all of the Purchased Securities transferred by Seller to Buyer on the First Purchase Date, U.S.$142,500,000, (ii) with respect to all of the Purchased Securities transferred by Seller to Buyer on the Second Purchase Date, U.S.$57,000,000, and (iii) with respect to all of the Purchased Securities transferred by Seller to Buyer on the Third Purchase Date, U.S.$33,000,150, in each case, as may be reduced pursuant to the operation of the “Purchase Price Reduction” provisions herein, and (b) Purchased Securities Exposure Amount shall be computed on an aggregate basis in respect of all Purchased Securities.           For the avoidance of doubt, there shall be no Price Differential incorporated into the Repurchase Price and all references to Price Differential and Pricing Rate are hereby deleted from the Agreement. In lieu of Price Differential, Seller shall be obligated to pay the Transaction Fee Amounts to Buyer as set forth herein. For the avoidance of doubt, paragraphs 2(ii), 2(jj) and 2(pp) of the Agreement shall not apply to the Transaction.       Termination of Transaction:   Subject to paragraphs 10 and 11 of the Agreement and Buyer’s rights with respect to a Regulatory Event and as otherwise set forth in this Confirmation, unless the parties otherwise agree, the Transaction shall not be terminable on demand by either Party.       Purchase Price Reduction:   (a) Seller may elect to prepay all or a portion of the Purchase Price of the Purchased Securities upon at least two Business Days’ prior written notice to Buyer if and only to the extent that (x) all or any portion of the Purchased Securities have been redeemed by the Issuer for cash in the form of USD on or prior to the related Prepayment Date (as defined below) and (y) such redemption has not previously resulted in a reduction in the Purchase Price of the Purchased Securities pursuant to the operation of these “Purchase Price Reduction” provisions (any prepayment of all of the then-outstanding Purchase Price under this clause (a), a “Voluntary Full Prepayment” and any prepayment of a portion of the then-outstanding Purchase Price under this clause (a), a “Voluntary Partial Prepayment”).           (b) If a Mandatory Prepayment Event has occurred with respect to the Purchased Securities, Buyer may upon at least three Business Days’ prior written notice to Seller require Seller to prepay the entire Purchase Price of the Purchased Securities (such prepayment, a “Mandatory Prepayment”).   3         Each written notice delivered by Seller under clause (a) or Buyer under clause (b) (each a “Prepayment Notice”) shall (x) designate the date on which such prepayment is to be effective (each a “Prepayment Date”) and (y) identify the portion of the then outstanding Purchase Price of the Purchased Securities to be prepaid on such Prepayment Date (such amount, the “Prepayment Amount”); provided that, in the case of a written notice delivered by Seller under clause (a), the Prepayment Amount designated by Seller in any Prepayment Notice for any Prepayment Date shall be such amount as Seller elects being equal to not less than U.S.$5 million and not greater than 50% of the applicable Current Redeemed Amount for such Prepayment Date.           On each Prepayment Date:           (i)          Buyer shall transfer to Seller or its agent Equivalent Securities in the form of USD cash in an amount equal to (A) the related Current Redeemed Amount minus (B) any Eligible Margin that the Seller would be required to post following the payments referred to in this paragraph and paragraphs (iii) and (iv) below);           (ii)         Seller shall pay the related Prepayment Amount to Buyer;           (iii)        Seller shall pay the related Breakage Amount (if any) to Buyer;           (iv)        with respect to a Voluntary Partial Prepayment, for each Purchased Security that is the subject of such prepayment, the Purchase Price for such Purchased Security immediately after giving effect to such prepayment shall be equal to (x) the Purchase Price thereof immediately prior to such prepayment minus (y) the related Prepayment Amount for such Purchased Security;             (v)         with respect to a Voluntary Full Prepayment or Mandatory Prepayment, (x) the Repurchase Date for the Transaction will be deemed to occur on such Prepayment Date and (y) the Purchase Price payable by Seller pursuant to clause (ii) above for the Purchased Securities required to be transferred by Buyer pursuant to clause (i) above, in each case as of the Repurchase Date, will be an amount equal to the related aggregate Prepayment Amount; and           (vi)        to the extent that a party has previously paid Cash Margin which has not been repaid in respect of the Purchased Security (or applicable portion thereof) that is the subject of such prepayment, that party shall be entitled to require that such Cash Margin and any accrued interest thereon be repaid on the applicable Prepayment Date (payment of which shall be subject to the operation of the provisions of paragraph 6(h) (as amended hereby)).   4         Upon any prepayment of the Purchase Price of the Purchased Securities pursuant to this provision, the related Repurchase Price shall be reduced accordingly (including for purposes of the definitions of “Purchased Securities Exposure Amount” and “Net Transaction Exposure”.       Current Redeemed Amount:   With respect to any Prepayment Date, an amount in USD determined by the Calculation Agent equal to the aggregate amount actually received by the holder of the Purchased Securities from the Issuer as one or more redemption payments in respect of the Purchased Securities on or prior to such Prepayment Date that has not previously been delivered by Buyer to Seller as Equivalent Securities pursuant to clause (i) of the “Purchase Price Reduction” provisions above.       Mandatory Prepayment Event:   It shall constitute a Mandatory Prepayment Event with respect to Seller if (after giving effect to all applicable notice requirements and grace periods) an “Event of Default” occurs with respect to the Issuer under (and as defined in) the Indenture and the stated maturity of the Class A Notes is accelerated under Section 5.2 of the Indenture.       Accelerated Termination Event:   Buyer may, at any time following the occurrence of a Regulatory Event, terminate the Transaction under this Confirmation by notifying Seller of an early Repurchase Date for the Transaction, which Repurchase Date shall not be earlier (unless so agreed by Buyer and Seller) than 15 calendar days after the date of such notice (or such lesser period as may be necessary for Buyer to comply with its obligations under applicable laws and regulations arising as a result of such Regulatory Event).       Regulatory Event:   An event which shall occur if, at any time, (a) Buyer determines, in its good faith commercially reasonable discretion, that Buyer’s involvement in the transactions contemplated in this Confirmation and the Agreement violates or could violate any law, rule or regulation applicable to Buyer or (b) any applicable Governmental Authority informs Buyer that Buyer’s involvement in such transactions violates or could violate any law, rule or regulation applicable to Buyer.       Paragraph 6(h):   Paragraph 6(h) shall be amended by deleting the words “Subject to paragraph 10,” at the beginning thereof such that, for the avoidance of doubt, such paragraph applies with respect to all payment obligations arising out of the occurrence of an Accelerated Termination Event, Voluntary Partial Prepayment, Voluntary Full Prepayment or an early Repurchase Date (including, without limitation, payment obligations in respect of Income that have accrued on or prior to the relevant date).   5     Failure to Deliver Equivalent Securities:   In respect of the Transaction, this provision (Failure to Deliver Equivalent Securities) shall apply in relation to Buyer’s obligations with respect to the Class A Notes in lieu of paragraph 10(h) of the Agreement and any reference in the Agreement to paragraph 10(h) in respect of Buyer’s obligations with respect to the Class A Notes shall be deemed to be a reference to this provision (Failure to Deliver Equivalent Securities).           It is acknowledged by each of the Parties hereto that the Class A Notes are unique assets, and that (except for proceeds of a redemption or repayment referred to in the definition of “Equivalent Securities”) accordingly no asset other than the Purchased Securities will qualify as Equivalent Securities.           Notwithstanding anything to the contrary in paragraph 10 of the Agreement or otherwise in the Agreement or this Confirmation and without duplication of the Operational Errors provisions below, if Buyer (the “Transferor”) fails to deliver to Seller (the “Transferee”) any Purchased Security (an “Unavailable Asset”) by the time (the “Due Date”) required under the Agreement or within such other period as may be agreed in writing by the Transferor and the Transferee (such failure, a “Transfer Failure”):           (a)         the Transferee, if it has paid the Purchase Price to the Transferor, may require the Transferor to repay the sum so paid with interest which shall accrue at a rate equal to the overnight Federal Funds (Effective) Rate for each day such amount remains outstanding (as reported in Federal Reserve Publication H.15-519) plus 2% per annum;           (b)         the Transferor, acting in good faith and a commercially reasonable manner, shall try for a period of 10 calendar days from the day following the Due Date in respect of the Unavailable Asset (the last day of such period, the “Transfer Cut-Off Date”) to obtain such Unavailable Asset (and, where the Transfer Failure is in respect of Buyer’s obligation to deliver the Purchased Securities on the scheduled Repurchase Date for the Transaction, the Transaction shall be deemed to continue until, and terminate upon, the Extended Termination Date);           (c)         if the Transferor obtains such Unavailable Asset on or prior to the Transfer Cut-Off Date, the Transferor shall promptly give notice to the Transferee of its ability to deliver such Unavailable Asset and shall transfer such Unavailable Asset to the Transferee on the third Business Day following the day on which the Transferor delivers such notice in settlement of the relevant Transfer Failure;   6         (d)         if any Unavailable Asset is redeemed in full or in part by the relevant issuer prior to the Transfer Cut-Off Date, then either Party may give notice to the other Party of such redemption after becoming aware of the same, and the Transferor shall transfer a sum of money equivalent to the proceeds of such redemption to the Transferee no later than two Business Days following the day on which the Transferor delivers or receives such notice, in exchange for the payment by the Transferee of the Repurchase Price;             (e)         if (x) Transferor has not obtained any Unavailable Asset on or prior to the Transfer Cut-Off Date and (y) such Unavailable Asset has not been redeemed in full by the relevant issuer prior to the Transfer Cut-Off Date, then on the Transfer Cut-Off Date, Transferor shall be deemed to have failed to satisfy its obligations to deliver Purchased Securities in accordance with its obligations under this Confirmation and the Agreement and such event shall constitute an Event of Default with respect to Buyer; and           (f)          to the extent that a party has previously paid Cash Margin which has not been repaid in respect of the Unavailable Asset, that party shall be entitled to require that such Cash Margin be repaid on the Extended Termination Date (as defined below).           For the avoidance of doubt, following any Transfer Failure in relation to the Transaction, the Parties’ other obligations under the Agreement shall continue, and if such Transfer Failure occurred in connection with the relevant Repurchase Date for the Transaction, the Transaction shall terminate on the day (the “Extended Termination Date”) which is, with respect to the last Unavailable Asset, the earliest to occur of:             (i)          the Business Day on which the Transferor transfers such last Unavailable Asset in accordance with sub-paragraph (c) above;           (ii)         if such last Unavailable Asset is redeemed in full in accordance with sub-paragraph (d) above, the day on which the Transferor transfers proceeds of such redemption; and           (iii)        the date on which clause (e) above occurs.           If any such Transfer Failure continues to subsist after the scheduled Repurchase Date for the Transaction, the Transaction Fee Amounts shall cease to accrue on the scheduled Repurchase Date for the Transaction and no further Transaction Fee Amounts shall be payable in respect of the Transaction, notwithstanding the continuance of the Parties’ obligations up to the Extended Termination Date under this provision.   7         Paragraph 10(k)(i) shall be deleted in its entirety and replaced with the following:           “Subject to sub-paragraph (ii) below, if as a result of (A) the Transaction terminating before its agreed Repurchase Date under paragraphs 10(b) or 10(g)(iii) or (B) the Transaction being extended to and terminating on the Extended Termination Date as a result of a failure by Buyer to satisfy its obligations to deliver Purchased Securities, the non-Defaulting Party (in the case of paragraph 10(b)), Buyer (in the case of paragraph 10(g)(iii)) or Seller (in the case of the occurrence of the Extended Termination Date) (in each case the “first party”) incurs any loss or expense in entering into replacement transactions, the other party shall, in addition and without prejudice to any other amounts required to be paid by such other party under the Confirmation evidencing such Transaction, be required to pay to the first party the amount determined by the first party in good faith to be equal to the loss or expense incurred in connection with such replacement transactions (including all fees, costs and other expenses) less the amount of any profit or gain made by that party in connection with such replacement transactions; provided that if that calculation results in a negative number, an amount equal to that number shall be payable by the first party to the other party.”       Determination of Default Market Value and Default Valuation Time:   (i) Buyer as Defaulting Party:   If the Repurchase Date is accelerated hereunder by reason of an Event of Default with respect to Buyer as Defaulting Party, then (x) this provision shall apply in lieu of paragraphs 10(d) through (e) (inclusive) of the Agreement for purposes of determining (I) the Default Market Value of the Equivalent Securities to be transferred, (II) the amount of any Cash Margin (including the amount of any interest accrued) to be transferred, and (III) the Repurchase Price to be paid, as a result of such Event of Default, and (y) any reference in the Agreement to paragraph 10(d) and/or 10(e), in relation to the Transaction shall be deemed to be a reference to this provision. Notwithstanding anything to the contrary in paragraphs 10(c) though (f) (inclusive) under the Agreement related to an Event of Default with respect to Buyer that results in the acceleration of the Repurchase Date:           (a)         the Default Market Value of the Equivalent Securities shall be the Final Price (as defined in the Collateral Management Agreement) determined by the Collateral Manager (as defined in the Indenture) on the Default Valuation Date (as defined in the Collateral Management Agreement), determined based upon the provisions of Section 2(p) of the Collateral Management Agreement; and           (b)         solely for purposes of determining the Default Market Value under sub-clause (a) above, each of Buyer and Seller hereby appoints the Collateral Manager as the Calculation Agent.   8           (ii) Seller as Defaulting Party:           If the Repurchase Date is accelerated hereunder by reason of an Event of Default with respect to Seller as Defaulting Party, then notwithstanding anything to the contrary contained in the Agreement or any provision in the Transaction Documents (as defined in the Indenture), with respect to the Transaction under this Confirmation:           (a)         the “Default Valuation Time” means, in relation to an Event of Default with respect to Seller as Defaulting Party, 5:00 p.m. (New York time) on the earlier of (1) the first Business Day following the date on which (x) all Portfolio Assets have been sold or otherwise liquidated pursuant to and in accordance with the Indenture, (y) the Purchased Securities have been sold by Buyer or (z) Buyer has received bid quotations in respect of all of the Purchased Securities from two or more Approved Dealers, (2) the first Business Day on which Buyer receives payment in full of the outstanding Repurchase Price and all other amounts owing to Buyer under the Agreement (including, without limitation, Breakage Amounts and Price Differential) from proceeds received in respect of the Purchased Securities or otherwise during the period commencing on the first day of the DMV Determination Extension Period, and (3) the 40th Business Day after the day on which that Event of Default occurs (or, in the case of an Act of Insolvency with respect to Seller, the 40th Business Day after the day on which Buyer as the non-Defaulting Party first became aware of the occurrence of such Event of Default), in each case, unless Buyer and Seller agree in writing to an earlier or later date           (the period from and including the day on which that Event of Default occurs (or, in the case of an Act of Insolvency with respect to Seller, the day on which Buyer as the non-Defaulting Party first became aware of the occurrence of such Event of Default) to and including the Default Valuation Time, the “DMV Determination Extension Period”);             (b)         notwithstanding anything to the contrary contained in the Agreement, the “Default Market Value” with respect to all of the Equivalent Securities shall be determined in accordance with one of the following methods and be equal to:           (i) if the Purchased Securities have been sold by Buyer in accordance with the Agreement, the net proceeds of such sale received by Buyer during the DMV Determination Extension Period, after deducting all reasonable costs, fees and expenses incurred in connection therewith;   9         (ii) if Buyer has received bid quotations in respect of all of the Purchased Securities from two or more Approved Dealers, an amount equal to (x) the arithmetic mean of the prices so quoted minus (y) the Transaction Costs which would be incurred in connection with any sale of the Purchased Securities following the acceptance of any such bid quotation; or           (iii) otherwise, the sum of:           (1) all Principal Collections received by the Issuer and/or the Trustee on the Issuer’s behalf in respect of the Purchased Securities during the DMV Determination Extension Period or otherwise on deposit in the Principal Collection Subaccount or the Payment Account;           (2) all Principal Collections expected to be received by the Issuer and/or the Trustee on the Issuer’s behalf in respect of the Purchased Securities as a result of binding commitments entered into by the Issuer and/or the Trustee on its behalf at any time during the DMV Determination Extension Period to sell or otherwise dispose of any Portfolio Assets;           (3) all Interest Collections received by the Issuer and/or the Trustee on the Issuer’s behalf in respect of the Purchased Securities during the DMV Determination Extension Period; and           (4) all amounts standing to the credit of the Principal Collection Subaccount, the Interest Collection Subaccount and the Payment Account (if any) as of the day immediately prior to the commencement of the DMV Determination Extension Period that have not been paid to Seller as Income hereunder;           provided that to the extent that Buyer in its capacity as Holder of Class A Notes has actually received (by way of distributions made in respect of the Class A Notes), at any time during the DMV Determination Extension Period, payments and/or sale or other liquidation proceeds in respect of the Portfolio Assets, in each case, during the DMV Determination Extension Period in an aggregate amount greater than or equal to the sum of the Repurchase Price and all other amounts owing to Buyer under the Agreement (including, without limitation, Breakage Amounts and Price Differential, and in each case determined at the time of occurrence of such Event of Default), then the “Default Market Value” with respect to all of the Equivalent Securities shall be deemed to be equal to the aggregate amount of such payments and sale or liquidation proceeds; and   10          (c)   if the Default Market Value is being determined pursuant to sub-clause (b)(iii) above, the portion of such Equivalent Securities represented by Portfolio Assets that have not been sold or otherwise disposed of by the Issuer or the Trustee on behalf of the Issuer or become the subject of a binding sale or disposition commitment of the Issuer or the Trustee on behalf of the Issuer during the DMV Determination Extension Period shall accordingly be deemed to have a value of zero for purposes of the determination of the Default Market Value thereof.           Without limiting any other right of Seller or Buyer hereunder or under the Transaction Documents (as defined in the Indenture), if the Repurchase Date has been accelerated hereunder by reason of an Event of Default with respect to Seller as the Defaulting Party:           (x)   Buyer (in its capacity as the Liquidation Agent under the Indenture and the Liquidation Agent Appointment Letter) shall resign (by giving notice to the Issuer and Trustee as required by the Liquidation Agent Appointment Letter) as the Liquidation Agent under and in accordance with the Indenture and the Liquidation Agent Appointment Letter immediately following the actual receipt by Buyer (whether in its capacity as Buyer or Holder of Class A Notes) during the DMV Determination Extension Period of sale and/or liquidation proceeds in respect of the Portfolio Assets (including the portion of the proceeds of any sale of any Portfolio Asset or collateral securing a Portfolio Asset) or other payments made in respect of the Purchased Securities or by Seller hereunder, in each case received or paid during the DMV Determination Extension Period, in an aggregate amount equal to the sum of the Repurchase Price and all other amounts Amounts and Price Differential), in each case determined at the time of occurrence of such Event of Default; provided that the foregoing shall not be construed as limiting or precluding in any way Buyer in its capacity as the Liquidation Agent under the Indenture from causing the Issuer or Trustee to enter into binding commitments to sell, dispose or otherwise liquidate Portfolio Assets with an aggregate expected sale or liquidation price in excess of such Repurchase Price at any time prior to the Liquidation Agent Effective Resignation Time (as defined in the Indenture);             (y)   notwithstanding any provision in the Agreement but without prejudice to the determination of the Default Market Value hereunder, Buyer is not obliged to transfer or deliver any Class A Note that represents the Equivalent Securities to Seller (I) if the Default Market Value thereof is being determined pursuant to sub-clause (b)(i) or (ii) above or (II) otherwise, in each case, unless and until the actual receipt by Buyer (whether in its capacity as Buyer or Holder of Class A Notes) of the amount set out in sub-clause (x) above; and   11         (z)   upon the payment and satisfaction in full by Seller of all of its obligations under the Agreement, Buyer shall not, in accordance with Section 14.8 of the Indenture, exercise any right it has in its capacity as the Liquidation Agent or any express third party beneficiary rights it has under any of the Transaction Documents (as defined in the Indenture).           For the purposes of this clause (ii):           (A) the amount payable pursuant to Paragraph 10(c)(ii) of the Agreement may not be calculated until the Default Market Values of all of the Equivalent Securities under each Transaction (including the Transaction evidenced by this Confirmation) entered into under this Agreement have been calculated and accordingly the payment under paragraph 10(c)(ii) shall be delayed until the next following Business Day following the latest date on which the Default Market Value has been determined with respect to all such Equivalent Securities (the “Final Payment Date”);           (B) the Parties acknowledge that (1) the Purchased Securities may be illiquid and/or unique and there may be no commercially reasonable determinant of value with respect to such Purchased Securities other than the price at which willing buyers agree to purchase such Purchased Securities or the relevant Portfolio Assets represented by such Purchased Securities, (2) if Buyer as the non-Defaulting Party were required to determine the Default Market Value of the Purchased Securities or the relevant Portfolio Assets represented by such Purchased Securities on the date on which an Event of Default with respect to Seller as the Defaulting Party occurs (or within five Business Days thereafter), the Default Market Value so determined may result in a commercially unreasonable price, and (3) providing Buyer as the non-Defaulting Party an extended period of time to determine the Default Market Value of the Purchased Securities or the relevant Portfolio Assets represented by such Purchased Securities is more likely to produce a commercially reasonable result even though it may also result in the payment under paragraph 10(c)(ii) in respect of all Equivalent Securities; and           (C) “Liquidation Agent Appointment Letter” shall have the meaning given to such term in the Indenture.   12     Income:   Means any interest, dividends or other distributions other than principal payments to be paid with respect to any Purchased Securities.  Buyer shall transfer to Seller all Income paid or distributed on or in respect of the Purchased Securities within one Business Day after the date that such Income is paid or distributed to holders of the Purchased Securities, and paragraph 5(i) of the Agreement (as amended and restated in the related Annex) shall be amended accordingly.  For avoidance of doubt, (a) references to the amount of any Income paid shall be to an amount paid net of any withholding or deduction for or on account of taxes or duties other than taxes or duties imposed as a result of a subsequent sale, transfer, pledge, or hypothecation of the Purchased Securities (including by way of a repurchase transaction) by Buyer, (b) all payment obligations of Buyer in respect of Income that have accrued but remain outstanding on any Repurchase Date shall be paid on such Repurchase Date and shall be subject to the provisions of paragraph 6(h) (as amended hereby) and (c) except as expressly provided for in the “Unpaid Amounts” provisions of this Confirmation or in paragraph 6(h) of the Agreement, Buyer shall not net or set-off against or otherwise apply the Income payment or payments to reduce the amount, if any, to be transferred to Buyer by Seller upon termination of this Transaction.       Clawback:   If (a) any distribution (whether as an Income payment or otherwise) on a Purchased Security, an Equivalent Security or, if the Equivalent Security is cash, such cash, is received by Buyer and subsequently paid by Buyer to Seller hereunder, and (b) Buyer is subsequently required to transfer all or a portion of such payment to the issuer of such Security (or trustee, paying agent or similar party) (the amount transferred, the “Clawback Amount”), then promptly after receiving notice of such Clawback Amount from Buyer, Seller shall transfer an amount equal to the Clawback Amount to Buyer. Buyer agrees to pay over to Seller within one Business Day after receipt any amounts subsequently recovered (but only to the extent such amounts are actually received by Buyer and Buyer is not otherwise obligated to pay such amounts to Seller pursuant to any other provision hereunder such that payment would result in duplicative payments by Buyer or any other party), and to make reasonable efforts to claim and collect such recoveries.  No interest shall be payable by Buyer or Seller in relation to Clawback Amounts or amounts recovered in respect thereof for the period prior to such amounts becoming payable under this provision.  This provision shall survive the termination of the Transaction.       Operational Errors:   Notwithstanding paragraph 10(a) of the Agreement and, without duplication of the “Failure to Deliver Equivalent Securities” provisions above, the failure of a Party (“X”) to make any payment or delivery referred to in such paragraph (other than a payment or delivery referred to in paragraph 10(a)(iv) of the Agreement) in respect of the Transaction will not be an Event of Default if such failure arises solely by reason of:   13         (a)         an error or omission of an administrative or operational nature made by or on behalf of X or by any bank, broker-dealer, clearing  corporation or other similar financial intermediary holding funds, securities or other property directly or indirectly for account of X (each, a “Paying Agent”); or           (b)         a failure by a person or entity other than X or any of its affiliates to make a delivery when due to X of securities or other property that X is obligated to deliver under the Transaction,           in each case, subject to the satisfaction of each of the following conditions:  (i) such failure does not continue for more than three Business Days after notice of such failure is given to X, (ii) funds, securities or property (assuming the timely delivery of securities or other property required to be delivered to X for settlement on or prior to the related date for payment or delivery under the Transaction) were available to X or such Paying Agent(s) to enable it (or them) to make the relevant payment or delivery when due, and (iii) X has provided the other Party with such additional information as the other Party shall have reasonably requested in writing in order to satisfy the other Party that such failure occurred solely as a result of one or more of the reasons described above.       Events of Default:   In addition to the Events of Default set forth in the Agreement, if any of the following events occurs, it shall constitute an Event of Default with respect to the relevant Party specified below which shall be the Defaulting Party:           (a)         with respect to Seller, if Seller fails to pay any Transaction Fee Amount due on a Transaction Fee Payment Date, and such amount remains unpaid for three (3) Business Days following the date that Buyer, as non-Defaulting Party, serves a Default Notice on the Seller as Defaulting Party;           (b)         with respect to Seller, if Seller breaches any of the covenants set forth in the section “Certain Covenants of Seller” below and such breach is not remedied within three (3) Business Days following the date that Buyer, as non-Defaulting Party, serves a Default Notice on the Seller as Defaulting Party;           (c)         with respect to Seller, if Seller fails to pay the applicable Breakage Amount (if any) on any Prepayment Date or early Repurchase Date, and Buyer, as non-Defaulting Party, serves a Default Notice on the Defaulting Party;           (d)         with respect to Buyer or Seller, as applicable, if Buyer or Seller, respectively, fails to perform its respective payment or delivery obligations on any Prepayment Date or when required under the “Failure to Deliver Equivalent Securities” provisions above, and the Party that is the non-Defaulting Party serves a Default Notice on the Defaulting Party;   14           (e)         with respect to Seller, Seller fails to pay any Clawback Amount in accordance with the “Clawback” provisions herein or, with respect to Buyer, Buyer fails to return any amounts to Seller as required by the “Clawback” provisions, and the non-Defaulting Party serves a Default Notice on the Defaulting Party and the same is not paid within one (1) Business Day of such Default Notice;           (f)         with respect to Seller, (i) the occurrence of an act by Seller that constitutes fraud or criminal activity in the performance of its obligations under the Agreement, the Equity Contribution Agreement or the Collateral Management Agreement, or (ii) Seller or any of its officers or directors (other than any independent or other outside director that is not an employee of Seller) shall be charged, indicted, convicted or the subject of a civil, administrative or enforcement action by any Governmental Authority for an offense involving securities fraud, embezzlement, money laundering, racketeering, insider trading, market manipulation or other similar violations of federal or state securities laws or federal criminal laws (other than any industry-wide investigation relating to practices that have become the subject of contemporaneous actions against multiple non-affiliated entities), and Buyer, as the non-Defaulting Party, serves a Default Notice on Seller as Defaulting Party; and           (g)         with respect to Seller, the occurrence of any of the events set forth in Section 10(b) of the Collateral Management Agreement, and Buyer, as non-Defaulting Party, serves a Default Notice on Seller as the Defaulting Party.       Breakage Amounts:   If (a) the Repurchase Date for this Transaction occurs prior to the scheduled Repurchase Date by reason of the occurrence of an Event of Default (where Seller is the Defaulting Party), a Mandatory Prepayment, a Voluntary Full Prepayment or an event described in paragraph 11(a) of the Agreement in respect of which Seller is the notifying party or (b) a Prepayment Date occurs in connection with a Voluntary Partial Prepayment, then, without limitation of any other payments or deliveries that become due as a result of such event but without duplication, on such Repurchase Date, Seller shall pay to Buyer an amount equal to the Breakage Amount for this Transaction or the applicable portion thereof.  For the avoidance of doubt, no Breakage Amount shall be payable by Seller in respect of any Repurchase Date occurring as a result of a Regulatory Event.   15         “Breakage Amount” shall mean, with respect to the Transaction evidenced hereby (or, in the case of a Voluntary Partial Prepayment the applicable portion thereof that is the subject of such Voluntary Partial Prepayment), the present value of the Transaction Fee Amounts that would have been payable to Buyer under such Transaction (or the applicable portion thereof) from (and including) the early Repurchase Date or applicable Prepayment Date (as applicable) to (but excluding) the scheduled Repurchase Date, as determined by the Calculation Agent assuming, solely for purposes of determining such amount, that (i) the Transaction Fee Rate is equal to the Spread and not LIBOR plus the Spread, (ii) the Repurchase Price payable upon such termination were to remain outstanding until the originally scheduled Repurchase Date and (iii) Seller has transferred to Buyer Securities on each Purchase Date with an aggregate Purchase Price applicable to each Purchase Date as set out in the “Purchase Price” provisions above.       Equivalent Securities:   Paragraph 2(s) and 2(t) shall be deleted in their entirety and replaced with the following:           “(s)       “Equivalent Securities”, with respect to a Transaction, Securities equivalent to Purchased Securities under that Transaction. If and to the extent that such Purchased Securities have been redeemed or repaid, the expression shall mean a sum of money equivalent to the proceeds of the redemption or repayment;           (t)          Securities are “equivalent to” other Securities for the purposes of this Agreement if they are: (i) of the same issuer; (ii) part of the same issue; and (iii) of an identical type, nominal value, description, class, CUSIP number (or equivalent ISIN number) and (except where otherwise stated) amount as those other Securities.”   2 Purchased Securities, Margining and Substitutions   Purchased Securities:   (a) On the First Purchase Date, Seller transferred to Buyer the Class A Notes issued under the Indenture on the Trade Date in exchange for the related Purchase Price;           (b) on the Second Purchase Date, Seller will transfer to Buyer the Class A Notes issued under the Indenture on the Amendment Effective Date in exchange for the related Purchase Price; and           (c) on the Third Purchase Date, Seller will transfer to Buyer the Class A Notes issued under the Indenture on the Second Amendment Effective Date in exchange for the related Purchase Price.           Such Class A Notes shall constitute the Purchased Securities under the Transaction evidenced hereby, and, to the extent that any such Class A Notes have been redeemed after any Purchase Date or any date on which such Purchased Securities have been transferred from Seller to Buyer, any cash equivalent to the proceeds of the redemption.   16     Margin Ratio:   With respect to a Purchased Security, an amount equal to (a) one, divided by (b) 1 minus the Haircut applicable to such Purchased Security.       Haircut:   (a) Up to but excluding the Third Purchase Date, 50%; and           (b) from and including the Third Purchase Date, 52.5%.       Marking to Market:   The Parties agree that, with respect to this Transaction, the provisions of paragraphs 4(a) to (h) (inclusive), 4(j) and 4(k) of the Agreement shall not apply and instead margin shall be provided separately in respect of this Transaction in accordance with the terms of this Confirmation.  For the avoidance of doubt, the provisions of paragraph 8(d) of the Agreement shall not apply to the Transaction.       Margin Maintenance:   Subject to the “Timing of Transfer of Eligible Margin” provision of this Confirmation:           (a) if at any time the Net Transaction Exposure for the Transaction is greater than or equal to the Margin Threshold, Buyer may, by notice to Seller, require Seller to, and Seller shall following such notice, transfer to Buyer an amount of Eligible Margin equal to the Incremental Variation Margin Amount;             (b) if at any time the Net Transaction Exposure for the Transaction is less than or equal to the product of (i) negative one and (ii) the Margin Threshold, Seller may, by notice to Buyer, require Buyer to, and Buyer shall following such notice, transfer an amount of Eligible Margin to Seller equal to the Incremental Variation Margin Amount; and             (c) on any Prepayment Date on which a Voluntary Partial Prepayment is effective, in addition to any amounts required to be transferred pursuant to sub-clause (a) or (b) above (which shall be determined as if such Voluntary Partial Prepayment has not occurred), Seller notice, transfer an amount of Eligible Margin equal to the Incremental Prepayment Margin Amount,           provided that:           (i) Seller or Buyer shall have no obligation to transfer Eligible Margin to the other Party pursuant to sub-clause (a) or (b) above unless and until the absolute value of the Net Transaction Exposure for the Transaction is equal to or greater than the Margin Threshold;   17         (ii) Buyer shall only be obligated to transfer Eligible Margin to Seller pursuant to sub-clause (b) or (c) above if (and only to the extent that) such transfer of Eligible Margin by Buyer is a return of Eligible Margin that has previously been transferred by Seller to Buyer pursuant to sub-clause (a) above in respect of the Transaction and has not been previously returned by Buyer to Seller;           (iii) Buyer or Seller may not transfer Eligible Margin except to the extent that it is requested by the other Party to do so in accordance with the applicable sub-clause (a), (b) or (c) above and accordingly, any Eligible Margin transferred by either Party in breach of this sub-clause (iii) shall not qualify as Eligible Margin and shall be assigned a zero value for all purposes hereof unless, until and solely to the extent that Eligible Margin is subsequently requested by the other Party in accordance with any sub-clause (a), (b) or (c) above; and           (iv) at any time when (a) an Event of Default or an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default, in each case, with respect to which Seller is the Defaulting Party, has occurred and is continuing, or (b) a Mandatory Prepayment Event or an event which with the giving of notice or lapse of time would constitute a Mandatory Prepayment Event, in each case, has occurred and is continuing, Seller shall, following notice from Buyer and notwithstanding sub-clause (a) above, transfer to Buyer Eligible Margin in an amount equal (x) the aggregate Repurchase Price of all of the Purchased Securities multiplied by the Margin Ratio minus (y) the aggregate Market Value of all of the Purchased Securities minus (z) the Net Margin provided to Buyer by Seller and not previously returned by Buyer to Seller.       Initial Variation Margin Amount:   With respect to the first time that the Net Transaction Exposure for the Transaction is equal to or greater than the Initial Margin Threshold (such time, “Initial Margin Call”), the sum of:           (1) the Initial Margin Threshold; and             (2) an amount equal to the product of:               (i) the Initial Margin Multiple               and               (ii) the Subsequent Margin Threshold,               where “Initial Margin Multiple” means an amount expressed as the nearest integer that is lower than or equal to the quotient of (x) an amount equal to (1) the absolute value of the Net Transaction Exposure minus (2) the Initial Margin Threshold divided by (y) the Subsequent Margin Threshold.   18     Incremental Variation Margin Amount:   (1) With respect to the Initial Margin Call only, the Initial Variation Margin Amount; and           (2) at any time after the Initial Margin Call, an amount equal to the product of:             (i) the Incremental Margin Multiple               and               (ii) the Subsequent Margin Threshold,               where “Incremental Margin Multiple” means an amount expressed as the nearest integer that is lower than or equal to the quotient of (x) the absolute value of the Net Transaction Exposure; divided by (y) the Subsequent Margin Threshold.       Incremental Prepayment Margin Amount:   In respect of a Purchased Security that is subject to a Voluntary Partial Prepayment, an amount equal to the product of: (i) the Prepayment Amount and (ii) a fraction, (a) the numerator of which is the Net Margin provided to Buyer by Seller (and not previously returned by Buyer to Seller) immediately prior to giving effect to such Voluntary Partial Prepayment including after giving effect to Eligible Margin otherwise credited to or transferred by Seller to Buyer on the date of such Voluntary Partial Prepayment pursuant to the operation of the “Purchase Price Reduction” provisions herein and (b) the denominator of which is the Purchase Price of such Purchased Security immediately prior to giving effect to such Voluntary Partial Prepayment.       Margin Threshold:   (a) At any time on any date of determination prior to the Initial Margin Call, 10% of the Aggregate Outstanding Amount of all of the Purchased Securities at such time (“Initial Margin Threshold”); and             (b) at any time on any date of determination that occurs after the Initial Margin Call, 5% of the Aggregate Outstanding Amount of all of the Purchased Securities at such time (“Subsequent Margin Threshold”).       Eligible Margin:   USD Cash only.       Net Transaction Exposure:   As of any time, an amount equal to the aggregate Purchased Securities Exposure Amount of the Purchased Securities under the Transaction minus an amount equal to the amount of Net Margin provided to Buyer by Seller   19     Purchased Securities Exposure Amount:   In respect of a Purchased Security, an amount equal to:           (a) the Repurchase Price of such Purchased Security multiplied by the Margin Ratio applicable to such Purchased Security, minus             (b) the Market Value of such Purchased Security.       Net Margin:   (i)      The definition of Net Margin in paragraph 2(ee) of the Agreement shall be deleted in its entirety and replaced with the following:           “The “Net Margin” provided to a party at any time shall mean the excess (if any) at that time of (i) the sum of the amount of Cash Margin paid to that party (including accrued interest on such Cash Margin which has not been paid to the other party) under the Margin Maintenance provisions in this Confirmation (excluding any Cash Margin which has been repaid to the other party) over (ii) the sum of the amount of Cash Margin paid to the other party (including accrued interest on such Cash Margin which has not been paid by the other party) under the Margin Maintenance provisions in this Confirmation (excluding any Cash Margin which has been repaid by the other party) and for this purpose any amounts not denominated in the Base Currency shall be converted into the Base Currency at the Spot Rate prevailing at the relevant time.”       Timing of Transfer of Eligible Margin:   Where Eligible Margin is to be transferred under the Margin Maintenance provisions hereof, unless otherwise agreed between the Parties, if the relevant notification is received:           (i) on a Business Day at or prior to the Margin Transfer Notification Time, then the transfer shall be made not later than the close of business on the same Business Day; and             (ii) on a Business Day after the Margin Transfer Notification Time or on a day that is not a Business Day, then the relevant transfer shall be made not later than the close of business on the next Business Day after the date such notification is received.           “Margin Transfer Notification Time” means, 10:00 am (New York time).   20       Market Value:   Notwithstanding paragraph 2(cc) of the Agreement but subject and without prejudice to the “Determination of Default Market Value” provisions above (and which, for the purposes of determining and calculating “Default Market Value”, shall supersede the provisions in this paragraph), “Market Value” shall mean, with respect to the Class A Notes on any date of determination by the Calculation Agent, an amount equal to the market value of all such Class A Notes, calculated as the sum of (i) the sum, with respect to each Portfolio Asset held by the issuer of the Class A Notes on such date, other than any Zero-Value Portfolio Asset (which for purposes of this clause (i) shall have a value of zero), of the product of (x) the Current Price of such Portfolio Asset on such date and (y) the Principal Balance (as defined in the Indenture) of such Portfolio Asset on such date, (ii) the aggregate amount of all cash held by the issuer of the Class A Notes on such date (other than any cash held in the Expense Account (as defined in the Indenture)), plus (iii) the aggregate cost of purchase of all Eligible Investments (other than any Eligible Investment invested in using any funds credited to the Expense Account (as defined in the Indenture)) held by the issuer of the Class A Notes on such date (subject to the Dispute Rights set forth herein).           For purposes of calculating Market Value pursuant to clause (b), the trade date (and not the settlement date) with respect to any acquisition or disposition of a Portfolio Asset shall be used to determine whether and when a Portfolio Asset is held by the issuer of the Class A Notes.       Current Price:   On any date of determination by the Calculation Agent with respect to any Portfolio Asset, including as of the acquisition date of such Portfolio Asset by the Issuer, the net cash proceeds (expressed as a percentage of par) that would be received from the sale of such Portfolio Asset on such date, exclusive of accrued interest and capitalized interest and net of the related expected Costs of Assignment (as defined below), as determined by the Calculation Agent;              provided that:           (a) if (i) such Portfolio Asset is the subject of a binding commitment to sell or otherwise dispose of such Portfolio Asset directly to an Approved Dealer (and not, for the avoidance of doubt, through an intermediary or any other person or entity) (any such sale or disposition, an “Approved Dealer Direct Sale”), (ii) the Calculation Agent has received a copy of the related fully executed and delivered confirmation in substantially the form prescribed by the Loan Syndications & Trading Association or the Loan Market Association (as applicable) and (iii) the Calculation Agent has determined, based on such confirmation, that such a sale or disposition constitutes an Approved Dealer Direct Sale, then the Current Price shall be the actual sale price (expressed as a percentage of par) on the applicable trade date of such sale that is receivable by the Issuer, exclusive of accrued interest and capitalized interest and net of the related expected Costs of Assignment (as defined below), pursuant to and in accordance with the terms of such binding commitment; and           (b) if such Portfolio Asset is the subject of a binding commitment to sell or otherwise dispose of such Portfolio Asset to any person or entity other than pursuant to an Approved Dealer Direct Sale, the Current Price shall be deemed to be the lesser of (i) the net cash proceeds (expressed as a percentage of par) that would be received from the sale or disposition on such date of such Portfolio Asset, exclusive of accrued interest and capitalized interest and net the Calculation Agent, and (ii) the actual sale price (expressed as a percentage of par) on the applicable trade date of such sale that is receivable by the Issuer, exclusive of accrued interest and capitalized interest and net of the related expected Costs of Assignment (as defined below), pursuant to and in accordance with the terms of such binding commitment.      21         For purposes hereof:           “Costs of Assignment” means, with respect to any Portfolio Asset, the sum of (a) without duplication of (b) or (c), any costs of any purchase, exchange, sale, transfer or assignment transaction with respect to such Portfolio Asset that would be paid by a person effecting such transaction under the terms of such Portfolio Asset or otherwise actually imposed on such person by any applicable trustee, administrative agent, registrar, borrower or Portfolio Asset Obligor incurred in connection with any such transaction with respect to such Portfolio Asset (including, without limitation, any amounts reimbursable by such person in respect of any tax or other governmental charge incurred with respect thereto), (b) without duplication of (a) or (c), any reasonable expenses that are incurred by such person in connection with any such transaction and (c) without duplication of (a) or (b), any reasonable administrative, legal or accounting fees, costs and expenses (including, without limitation, any fees and expenses of the trustee of or outside counsel to the Portfolio Asset Obligor on such Portfolio Asset) that are incurred by such person in connection with any such transaction.       Zero-Value Portfolio Asset:   (a)    Any Portfolio Asset for which there does not exist a written agreement (which may be evidenced by an exchange of emails by duly authorized persons) between Buyer (acting in its sole discretion exercised in good faith without regard to the Zero-Value Designation Criteria, the Portfolio Criteria or “Asset Eligibility Criteria” (as defined in the Indenture), the exercise of which discretion shall not be affected by any prior exercise thereof by or other actions or omissions of Buyer) and Seller, entered into prior to the acquisition thereof by the issuer of the Class A Notes, to the effect that such Portfolio Asset shall not be a “Zero-Value Portfolio Asset”; provided that any such Portfolio Asset may subsequently become a Zero-Value Portfolio Asset pursuant to (b), (c), (d) or (e) of this Section.           (b)    Any Portfolio Asset that, at any time after the acquisition thereof by the issuer of the Class A Notes on any date of determination by the Calculation Agent, (i) has (A) become at any time a “Defaulted Obligation” (as defined in the Indenture) and such situation has not been remedied within five Business Days after the earlier of (1) notice of such event from the Collateral Manager to the Issuer and (2) notice of such event from Buyer to Seller or (B) ceased to comply with any of the Zero-Value Designation Criteria (other than those criteria that, by their express terms, are tested only at the date of acquisition by the Issuer) and (ii) in the case of an event specified under sub-clause (i)(B) above, Buyer, acting in its sole discretion exercised in good faith (the exercise of which discretion shall not be affected by any prior exercise thereof by or other actions or omissions of Buyer), has notified Seller shall constitute a “Zero-Value Portfolio Asset” as a result of the occurrence of the event specified under sub-clause (i) (B) above; provided that (x) Buyer shall not be entitled to designate the following Portfolio Assets as “Zero-Value Portfolio Assets” solely on the basis of clause (d) of the Zero-Value Designation Criteria: Applied Merchant Systems, Tax Defense Network, Orchid Underwriters Agency LLC and Pure Barre LLC and (y) Buyer shall not be entitled to designate the following Portfolio Assets as “Zero-Value Portfolio Assets” solely on the basis of clause (e) of the Zero-Value Designation Criteria: CIG Financial, EagleRider and Interblock.    22           (c)    Any Non-Liquid Loan that is deemed to be a Zero-Value Portfolio Asset as a result of Seller’s failure to comply with the requirements described in “Third Party Valuations” below until an Eligible Valuation is provided in respect thereof in accordance with this Confirmation;             (d)    Any Portfolio Asset which (i) together with any other Portfolio Assets, has resulted in a breach of any of the Portfolio Criteria that has not been remedied within five (5) Business Days of Buyer notifying Seller thereof or Seller otherwise becoming aware thereof and (ii) Buyer, acting in its sole discretion exercised in good faith at any time thereafter (the exercise of which discretion shall not be affected by any prior exercise thereof by  or other actions or omissions of Buyer), has notified Seller shall constitute a “Zero-Value Portfolio Asset” as a result of such breach; provided that Buyer shall only be entitled to designate a portion of the relevant Portfolio Assets as “Zero-Value Portfolio Assets” under this clause (d) with an “Aggregate Principal Balance” (as defined in the Indenture) that is equal to the extent of such non-compliance;             (e)    Any Portfolio Asset that does not at the time of acquisition by the Issuer satisfy the conditions set forth in Section 12.2(a) of the Indenture; and           (f)     Any Portfolio Asset with respect to which either (i) Seller took, agreed or consented to any action set out in Section 2(o) of the Collateral Management Agreement, without providing Buyer with either of the “Restructuring Notices” (as defined in the Collateral Management Agreement) within the timeframes set out therein, or (ii) unless the taking of the relevant action has otherwise already resulted in the relevant Portfolio Asset constituting a Zero-Value Portfolio Asset under clause (b)(i)(A) above, Seller took, agreed or consented to any of the actions set out in paragraphs (i), (ii), (iii), or (iv) of Section 2(o) of the Collateral Management Agreement without first obtaining the prior written consent of Buyer (acting in its capacity as Liquidation Agent (as defined in the Indenture)). Without limiting Buyer’s discretion with respect to the nature of its response, Buyer shall respond promptly to any request of Seller asking whether or not Buyer is willing to provide any such consent.      23       Zero-Value Designation Criteria:   Criteria satisfied in respect of a Portfolio Asset on (i) in the case of clauses (a), (f), (g), (i) and (j) the trade date for the acquisition thereof by the Issuer and (ii) otherwise, any date of determination by Buyer if:       (a) as of the applicable trade date, the obligation has a legal final maturity not more than 7 years after such trade date;             (b) the obligation does not by its terms permit the deferral and/or capitalization of payment of 25% or more accrued, unpaid interest;             (c) the United States or the District of Columbia is the principal place of business for the related Portfolio Asset Obligor for the obligation;             (d) EBITDA for the most recent consecutive four fiscal quarters of the relevant Portfolio Asset Obligor for which financial reports are available is at least U.S.$10,000,000 for “Senior Secured Loans” (as defined in the Indenture);             (e) EBITDA for the most recent consecutive four fiscal quarters of the relevant Portfolio Asset Obligor for which financial reports are available is at least U.S.$15,000,000 for “Second Lien Loans” (as defined in the Indenture) and Unsecured Loans (as defined in the Indenture);             (f) as of the applicable trade date, the obligation is rated (including any private rating) by one of Moody’s (as defined in the Indenture), S&P (as defined in the Indenture), or Lincoln International, with a rating assigned to the obligation by Moody’s, S&P, or Lincoln not less than “Caa2”, “CCC”, or “CCC”, respectively;             (g) as of the applicable trade date, the market value of the obligation (expressed as a percentage of par and computed without reference to any accrued interest) is not less than the greater of (i) 70% and (ii) 85% of the value of the S&P/LSTA US Leveraged Loan 100 Index;               (h) the obligation is denominated and payable solely in USD and is neither convertible by the related Portfolio Asset Obligor thereon or thereof into, nor payable in, any other currency;      24         (i) in the case of an obligation that is a Loan, as of the applicable trade date of such Portfolio Asset, either the obligation (1) both (x) is the subject of at least two bid quotations from nationally recognized independent dealers in such obligation as reported on Markit Partners (or any successor nationally recognized loan pricing service) and (y) has a Portfolio Asset Obligor whose EBITDA for the most recent four consecutive fiscal quarters of the relevant obligation for which financial reports are available is greater than U.S.$50,000,000; or (2) is valued by an Independent Valuator in a report delivered to Buyer, Seller and the Calculation Agent on or prior to such trade date; and             (j) in the case of an obligation that is a Bond, the obligation, as of the applicable trade date of such Portfolio Asset, both (1) is the subject of at least three bid quotations from International Data Corporation (or any successor nationally recognized loan pricing service) and (2) has a Portfolio Asset Obligor whose EBITDA for the most recent four consecutive fiscal quarters of the relevant obligation for which financial reports are available is greater than U.S.$50,000,000.   Portfolio Criteria:   Criteria that are satisfied on any date of determination by Buyer so long as:       (a) [reserved];               (b) the “Aggregate Principal Balance” of all Portfolio Assets consisting of “Second Lien Loans” and “Unsecured Loans” does not exceed 70% of the “Aggregate Portfolio Par Value”; provided that the “Aggregate Principal Balance” of all Portfolio Assets consisting of Unsecured Loans does not exceed 5% of the “Aggregate Portfolio Par Value”;               (c) the “Aggregate Principal Balance” of all Portfolio Assets relating to a single Portfolio Asset Obligor does not exceed 7.5% of the “Aggregate Portfolio Par Value”; and             (d) the “Aggregate Principal Balance” of all Portfolio Assets in any single S&P Industry Classification Group does not exceed 10.0% of the “Aggregate Portfolio Par Value”, provided that the “Aggregate Principal Balance” of all Portfolio Assets in up to each of three separate S&P Industry Classification Groups may each separately constitute up to (but not exceeding) 15% of the “Aggregate Portfolio Par Value”.       Capitalized terms used in this Section shall have the respective meanings given to such terms in the Indenture.    25     S&P Industry Classification Groups   Each of the categories set forth in Schedule II hereto.       Third Party Valuations:   Seller shall procure that Lincoln International provide valuations in respect of each Portfolio Asset that is a Non-Liquid Loan (an “Asset Valuation Report”) to Buyer with respect to the first Asset Valuation Report Period (as defined below). Thereafter, Seller shall procure that CTS Capital Advisors LLC or such other person agreed by Seller and Buyer (each, an “Independent Valuator”) shall from time to time prepare Asset Valuation Reports and provide a copy thereof to Buyer as follows:       (a) with respect to each Non-Liquid Loan acquired by the Issuer, a copy of such Asset Valuation Report on or before the date of acquisition (on a trade date basis) of such Non-Liquid Loan; and             (b) within 10 calendar days of the last day of each Asset Valuation Report Period, an Asset Valuation Report in respect of each Non-Liquid Loan held by the Issuer as of such date.       For purposes of the foregoing, “Asset Valuation Report Period” means each calendar quarter ending on March 31, June 30, September 30 and December 31; provided that (i) subject to clause (ii) below, the first Asset Valuation Report Period commenced on the First Purchase Date and ended on June 30, 2015 and (ii) Seller procured that Lincoln International provided individual valuations with respect to each Portfolio Asset acquired by the Issuer that were current as of March 31, 2015 on or prior to the First Purchase Date.           If, on any date of determination by the Calculation Agent, Seller has failed to procure an Asset Valuation Report in respect of one or more Non-Liquid Loans in accordance with the requirements of clause (a) or (b), each such Non-Liquid Loan omitted from such Asset Valuation Report shall be deemed to be a Zero-Value Portfolio Asset until such time as such Non-Liquid Loan is included in a subsequent Asset Valuation Report or an equivalent report from an Independent Valuator, Alternate Valuation Company, or the Back-Up Valuation Company delivered at any time after such date of determination (which equivalent report may be requested by Seller at any time).   Eligible Investments:   Any “Eligible Investments” under (and as defined in) the Indenture.       Dispute Rights:   Provided that no Event of Default has occurred and is continuing with respect to Seller, if Seller in good faith has a commercially reasonable basis for disagreement with the Calculation Agent’s determination of the Current Price of any Portfolio Asset, then Seller may dispute such determination by giving notice of such dispute (a “Dispute Notice”) to Buyer and the Calculation Agent no later than (i) if Seller receives notice of the Calculation Agent’s determination of a Current Price in dispute at or prior to noon (New York time) on any Business Day, by the close of business on such Business Day and (ii) if Seller receives notice of the Calculation Agent’s determination of a Current Price in dispute after noon (New York time) on any Business Day, by noon (New York time) on the following Business Day.  Any such Dispute Notice shall specify, in reasonable detail, the bid-side market price Seller believes should be attributed to any such Portfolio Asset, along with reasonable evidence supporting such value.    26         Promptly following delivery of a Dispute Notice in relation to any Portfolio Asset, the Calculation Agent and Seller shall negotiate in good faith to try to agree to the disputed Current Price.  If by 10:00 a.m. (New York time) on the Business Day following the day on which the Dispute Notice is delivered, the Calculation Agent and Seller are unable to agree, then:         (i)      each of the Calculation Agent and Seller shall seek bids actionable by Buyer from an Approved Dealer selected by the entity seeking the bid for the face amount of such disputed Portfolio Asset (exclusive of accrued interest); and, if such bids are submitted to the Calculation Agent by 2:00 p.m. (New York time) on such Business Day, then the arithmetic average of the bids obtained (if any) or the bid obtained (where only one bid is obtained) shall be used for purposes of setting the Current Price of such disputed Portfolio Asset with respect to the day such bid is received; and               (ii)      if bids cannot be obtained as provided in the preceding paragraph (i) with respect to any disputed Portfolio Asset by the deadline specified in such paragraph:         (A)      Seller shall request that CTS Capital Advisors, LLC (“CTS Valuer”), or such other party as agreed by the Calculation Agent and Seller (CTS Valuer or such other party, the “Alternate Valuation Company”), provide an Eligible Valuation to the Calculation Agent;               (B)      if (1) no such Eligible Valuation is received by the Calculation Agent from the Alternate Valuation Company by 2:00 p.m. (New York time) on the fifth Business Day following such request or (2) the Calculation Agent in good faith has a commercially reasonable basis to disagree with the Alternate Valuation Company’s Eligible Valuation and the Calculation Agent notifies Seller and the Calculation Agent of such disagreement on the day such Eligible Valuation is received by the Calculation Agent (the earlier of such fifth Business Day and the day of such notification, the “Notification Day”), then no later than 10:00 a.m. (New York time) on the Business Day next following the Notification Day, the Calculation Agent shall deliver a request to Lincoln International, Valuation Research Corporation, Houlihan Capital and Houlihan Lokey or their respective successors (each a “Back-Up Valuation Company”) to provide an Eligible Valuation for such disputed Portfolio Asset; and     27           (C)     the Current Price in relation to such disputed Portfolio Asset shall be:         (1)      if the Alternate Valuation Company provides an Eligible Valuation and the Calculation Agent does not provide a request in accordance with sub-clause (B) above, the Resolved Current Price in relation to the Eligible Valuation provided by the Alternate Valuation Company;               (2)       if the Calculation Agent provides a request in accordance with sub-clause (B) above and the Back-Up Valuation Company provides an Eligible Valuation for such disputed Portfolio Asset by no later than 2:00 p.m. (New York time) on the fifth Business Day following such request, the Resolved Current Price in relation to the Eligible Valuation provided by the Back-Up Valuation Company;                 (3)      if the Calculation Agent provides a request for the Back-Up Valuation Company as a result of the event described in sub-clause (B)(1) above and the Back-Up Valuation Company fails to provide an Eligible Valuation for such disputed Portfolio Asset by no later than 2:00 p.m. (New York time) on the fifth Business Day following such request, the Current Price originally determined by the Calculation Agent; and               (4)      if the Calculation Agent provides a request for the Back-Up Valuation Company following the delivery of a notice to Seller in accordance with sub-clause (B)(2) above and the Back-Up Valuation Company fails to provide an Eligible time) on the fifth Business Day following such request, the Eligible Valuation provided by the Alternate Valuation Company.    28         If Seller has delivered a Dispute Notice, during the pendency of such dispute, the Parties shall be required to deliver or return (as applicable) margin based on the Calculation Agent’s original determination in accordance with this Confirmation; provided that, following resolution of the dispute, the Parties shall be required to deliver or return (as applicable) margin based on the Current Price so determined. For the avoidance of doubt, with respect to the dispute of the Current Price of any Portfolio Asset, upon the determination of such Current Price in accordance with the foregoing, the Calculation Agent shall recalculate the relevant Market Value of the related Purchased Securities using such Current Price for such Portfolio Asset.           For purposes of this section Dispute Rights:           “Eligible Valuation” shall mean, with respect to any disputed Portfolio Asset, a valuation (which may be quoted in a range of values) for the outstanding principal amount of such Portfolio Asset (expressed as a percentage of par) that would be received from the sale of such Portfolio Asset on the date such valuation is provided, exclusive of accrued interest and capitalized interest; and           “Resolved Current Price” shall be, with respect to any Eligible Valuation that is:           (I)        quoted as a range of values where the difference between the lowest and highest values in such range (each expressed as a percentage of par) is an amount greater than 5% of par, as determined by the Calculation Agent, the lowest value in such range;           (II)       quoted as a range of values where the difference between the lowest and highest values in such range (each expressed as a percentage of par) is an amount less than or equal to 5% of par, as determined by the Calculation Agent, the mid-point between the lowest and highest value in such range, as determined by the Calculation Agent; and           (III)      not quoted as a range of values, such Eligible Valuation.   Interest on Cash Margin:   The interest rate applicable to Cash Margin shall be a rate per annum equal to the overnight Federal Funds (Effective) Rate for each day cash is held as Margin hereunder, as reported in Federal Reserve Publication H.15-519. Such interest will be calculated on the basis of the actual number of days elapsed and compounding and shall be payable on the first Business Day of each calendar month, on each Prepayment Date (to the extent that it has accrued on the Cash Margin transferred in respect of the applicable Prepayment Amount) and on the Repurchase Date.    29     Substitutions:   No substitutions of Purchased Securities shall be permitted.     3Fees   Transaction Fees:   On each Transaction Fee Payment Date, for each Purchased Security, Seller shall pay to Buyer an amount equal to the Transaction Fee Amount for such Purchased Security for the related Transaction Fee Period.       Transaction Fee Payment Dates:   For each Purchased Security, March 31st, June 30th, September 30th, and December 31st, commencing on June 30, 2015, and ending on (and including) the Repurchase Date for such Purchased Security, subject to adjustment in accordance with the Business Day Convention.       Transaction Fee Periods:   For each Purchased Security, each period from (and including) one Transaction Fee Payment Date for such Purchased Security to (but excluding) the next following Transaction Fee Payment Date for such Purchased Security; provided that (a) the initial Transaction Fee Period shall commence on (and include) the Purchase Date for such Purchased Security and (b) the final Transaction Fee Period shall end on (and exclude) the Repurchase Date for such Purchased Security.       Transaction Fee Amounts:   For each Purchased Security, the Transaction Fee Amount payable by Seller on a Transaction Fee Payment Date shall be equal to the aggregate amount obtained by application of the Transaction Fee Rate for the related Transaction Fee Period, on an actual/360 basis, on each day during the related Transaction Fee Period to the Purchase Price outstanding for such Purchased Security; provided that if an early Repurchase Date occurs with respect to a Purchased Security, such calculation shall be made using the daily average of the Purchase Price for such Purchased Security during the applicable Transaction Fee Period (being the result of (x) the aggregate of the Purchase Price as of the close of business on each Business Day during such Transaction Fee Period divided by (y) the number of Business Days in such Transaction Fee Period).       Transaction Fee Rate:   For each Transaction Fee Period, a rate per annum equal to the sum of (a) LIBOR determined on the Reset Date for such Transaction Fee Period plus (b) the Spread.       Where:    30         Notwithstanding paragraph 2(y) of the Agreement, “LIBOR”, for any Reset Date, means the London Interbank Offered Rate for the Relevant Period in respect of USD as quoted on the Bloomberg Screen BTMM Page (or such other page as may replace the Bloomberg Screen BTMM Page) under the heading “LIBOR-FIX-BBAM<GO>” (or any replacement heading) as of 11:00 a.m., London time, on the day (the “Determination Date”) that is two London banking days preceding such date.  If such rate does not appear on the Bloomberg Screen BTMM Page (or any replacement page) under such heading (or any replacement heading), as of 11:00 a.m., London time, on such Determination Date, LIBOR will be determined by the Calculation Agent. For any Transaction Fee Period that is less than the Relevant Period, LIBOR shall be determined through the use of straight line interpolation by reference to two rates based on LIBOR, one of which shall be determined as if the Relevant Period were the period of time for which rates are available next shorter than the length of the Transaction Fee Period and the other of which shall be determined as if the Relevant Period were the period of time for which rates are available next longer than the length of the Transaction Fee Period.           “Relevant Period” means three months.           “Reset Date” with respect to any Transaction Fee Period, means the first day of such Transaction Fee Period.           “Spread” means: (a) up to but excluding the Third Purchase Date,  3.90%; and (b) from and including the Third Purchase Date, 4.05%.   4Miscellaneous   Voting Rights:   Where any voting or consent rights fall to be exercised in relation to any Purchased Securities, Buyer shall be entitled to exercise such voting or consent rights in its sole discretion and shall not have any obligation to arrange for voting or consent rights to be exercised in accordance with the instructions of Seller.       Business Day:   Notwithstanding paragraph 2(e) of the Agreement, “Business Day” means any day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits) in New York.       Business Day Convention:   The convention for adjusting any relevant date if it would otherwise fall on a day that is not a Business Day so that such date will be the first following day that is a Business Day.       Unpaid Amounts:   For the avoidance of doubt, on the final Repurchase Date (whether occurring prior to, on, or after, the scheduled Repurchase Date, and whether occurring as a result of an Event of Default, a Prepayment Date, or otherwise), if there are amounts that became payable by one Party to the other Party on or prior to such Repurchase Date and which remain unpaid as at such Repurchase Date, such amounts shall remain an outstanding obligation of such Party and shall be netted with and set off against the amounts otherwise payable by the Parties on such Repurchase Date.    31     Interest on Amounts Payable:   Any amount due from one party to the other following the occurrence of an Event of Default shall be paid together with (to the extent permitted under applicable law) interest thereon (both before and after judgment) in USD, from (and including) the date on which such amount was originally due to (but excluding) the date such amount is paid, at a rate per annum equal to the overnight Federal Funds (Effective) Rate for each day such amount remains outstanding (as reported in Federal Reserve Publication H.15-519) plus 2% per annum.  Such interest will accrue daily without compounding based on the actual number of days elapsed. The provisions of this paragraph shall supersede any conflicting provisions in paragraph 12 of the Agreement.   Tax Matters:   (i) For (and only for) U.S. Federal income tax purposes, each Party agrees: (i) to treat the purchase hereunder of Purchased Securities consisting of Class A Notes as if Buyer had made a loan to Seller secured by such Purchased Securities, (ii) to treat Seller as beneficial owner of such Purchased Securities, and (iii) not to take any inconsistent position on any related tax return.       (ii) Notwithstanding anything else in the Agreement, if the defaulting Party exercises its right to assign rights to payment under Paragraph 16(b) of the Agreement following an Event of Default, if any withholding or other taxes are imposed on payments to any assignee, the payor’s obligation to gross-up any such payment in respect of such tax to such assignee shall be limited to the amount of any gross-up it would have been obligated to pay immediately before any such assignment occurred.           (iii) If either Party exercises its right to assign rights to payment under Paragraph 16(b) of the Agreement, prior to being entitled to receive any gross-up payments in respect of any taxes withheld, any assignee will be required to submit to the payor an executed, complete IRS Form W-8 or W-9 (as applicable) establishing any available exemption or reduction from any US withholding taxes that may be imposed on the payment assigned.       Certain Covenants of Seller:    (i)      Seller agrees that Seller will not permit any securities to be issued under the Indenture to any person or entity other than Seller.    32         (ii)      Seller agrees that Seller will not sell, transfer or otherwise dispose of any securities issued under the Indenture (or any interest therein) other than pursuant to the Transaction.           (iii)     To the fullest extent permitted by law, Seller agrees to fully indemnify, defend and hold harmless upon demand (x) Buyer and its Affiliates, (y) their respective directors, officers, agents and employees, and (z) each other entity or person controlling Buyer within the meaning of the Federal securities laws (each such entity and person collectively being referred to hereinafter as an “Indemnified Party”) from and against any actual out-of-pocket losses, claims, damages, expenses and liabilities (collectively, “Losses”) as and when incurred by an Indemnified Party in connection with any actual or threatened investigation, dispute (whether or not formal proceedings are instituted and whether or not the Indemnified Party is a party), claim, action, suit or proceeding (in court, arbitration, mediation or otherwise) related to or arising out of any untrue statement or alleged untrue statement of a material fact contained in written information relating to any of the Portfolio Assets or the Purchased Securities that is provided by Seller under or in connection with the Transaction Documents (as defined in the Indenture) (“Seller Information”), or the omission or alleged omission to state in any Seller Information a material fact necessary in order to make the statements therein not misleading in light of the circumstances under which they were made, except in all cases to the extent that any such Losses are incurred as a result of the fraud, bad faith, gross negligence or willful misconduct of, or material breach of any applicable confidentiality undertaking of Buyer relating to the disclosure of Seller Information by, any Indemnified Party.           (iv)     Seller shall, promptly upon receipt from the Issuer of the notice under Section 12.1(a)(iv) of the Indenture, deliver a copy of such notice to Buyer.       Notification of Events of Default:   Each Party shall notify the other Party as soon as reasonably practicable upon becoming aware of the occurrence of any Event of Default with respect to such notifying Party or event which with the giving of notice and/or lapse of time could become an Event of Default with respect to such notifying Party.       Representations and acknowledgements:   Unless agreed to the contrary expressly and in writing in this Confirmation and notwithstanding any communication that each Party (and/or its Affiliates) may have had with the other Party or any of its Affiliates, in respect of the Transaction subject to this Confirmation, each Party will be deemed to represent to the other Party on the Trade Date and each Purchase Date of the Transaction and on each date on which the Transaction is terminated (in whole or in part) that:    33         (i)        it is entering into or terminating (in whole or in part) the Transaction for its own account;           (ii)       none of the other Party or any of its Affiliates or agents are acting as a fiduciary or financial adviser for it;           (iii)      it is a sophisticated investor that has made its own independent decisions to enter into the Transaction, as to whether the Transaction is appropriate or proper for it and as to any related investment, hedging and/or trading based upon its own judgment and upon advice from such legal, regulatory, tax, financial, accounting and other advisers as it has deemed necessary, and not upon any view expressed by the other Party or any of its Affiliates or agents;           (iv)     it is not relying on any communication (written or oral) of the other Party or any Affiliate or agent thereof except those expressly set forth in the Agreement, except that nothing in the Agreement will limit or exclude any liability of a party for fraud;           (v)      it is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction, and is also capable of assuming, and assumes, the risks of the Transaction;           (vi)     having made all necessary enquiries with relevant authorities, its entry into or termination (in whole or in part) of the Transaction will not contravene any applicable law, decree, regulation, regulatory guidance, regulatory request, regulatory briefing or order of any government or governmental body (including any court or tribunal); and           (vii)     to the extent required to do so, it has notified relevant authorities, in a manner acceptable to such authorities, of its entry into the Transaction.           Unless agreed to the contrary expressly and in writing in this Confirmation and notwithstanding any communication that each Party (and/or its Affiliates) may have had with the other Party, in respect of the Transaction subject to this Confirmation, each Party will be deemed to acknowledge on the date on which it enters into the Transaction that:           (a)       none of the other Party or its Affiliates provides investment, tax, accounting, legal or other advice in respect of the Transaction;    34         (b)       it has been given the opportunity to obtain information from the other Party concerning the terms and conditions of the Transaction necessary in order for it to evaluate the merits and risks of the Transaction; provided that, notwithstanding the foregoing, (i) it and its advisors are not relying on any communication (written or oral and including, without limitation, opinions of third party advisors) of the other Party or its Affiliates as (A) legal, regulatory, tax, business, investments, financial, accounting or other advice, (B) a recommendation to enter into the Transaction or (C) an assurance or guarantee as to the expected results of the Transaction; it being understood that information and explanations related to the terms and conditions of the Transaction are made incidental to the other Party’s business and shall not be considered (x) legal, regulatory, tax, business, investments, financial, accounting or other advice, (y) a recommendation to enter into the Transaction or (z) an assurance or guarantee as to the expected results of the Transaction and (ii) any such communication should not be the basis on which such Party has entered into the Transaction, and should be independently confirmed by such Party and its advisors prior to entering into the Transaction;         (c)       none of the Parties or any Affiliate thereof has any obligation to, and it will not, select securities or transfers of currency, with regard to the needs or interests of any person other than itself, and each Party and its Affiliates may accept deposits from, make loans or otherwise extend credit to, and generally engage in any kind of commercial or investment banking business with the issuer of any Purchased Security or its affiliates or any other person or entity having obligations relating to the Purchased Securities and may act with respect to such business in the same manner as if the Transaction did not exist, regardless of whether any such action may have an adverse effect on either Party’s position under the Transaction;           (d)     each Party and its Affiliates may, whether by virtue of the types of relationships described above or otherwise, at the date hereof or at times hereafter be in possession of information in relation to the issuer of the Class A Notes which is or may be material in the context of the Transaction and which is or may not be known to the general public or to one or both of the Parties, and the Transaction does not create any obligation on the part of any of the Parties and their respective Affiliates to disclose to either Party any such relationship or information (whether or not confidential);           (e)       Neither Party makes any representations or warranties to the other in connection with, and shall have no responsibility with respect to, the accuracy of any statements, warranties or representations made in or in connection with the Purchased Securities, any information contained in any document filed by the issuer of the Purchased Securities (the “Issuer”) with any exchange or with any governmental entity regulating the purchase and sale of securities, the solvency or financial condition of the Issuer, or the legality, validity, binding effect or enforceability of the obligations of the Issuer in respect of the Purchased Securities.  Each Party acknowledges that it has, independently and without reliance on the other and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into the Transaction and will continue to be responsible for making its own independent appraisal of the business, affairs and financial condition of the Issuer; and    35       (f)        The Transaction does not create either a direct or indirect obligation of the Issuer owing to Seller or a direct or indirect participation in any obligation of the Issuer owing to Buyer.  The Seller acknowledges that the Seller shall not have any voting rights with respect to the Purchased Securities or any other rights under or with respect to the Purchased Securities, other than as expressly set forth herein.           Each Party acknowledges and agrees that (i) the Transaction to which this Confirmation relates is (x) a “securities contract”, as defined in Section 741 of the federal Bankruptcy Code, Title 11 of the United States Code, as amended (the “Bankruptcy Code”) and (y) a “repurchase agreement” as that term is defined in Section 101 of Title 11 of the Bankruptcy Code (except insofar as the type of Securities subject to the Transaction or the term of the Transaction would render such definition inapplicable) and (ii) the exercise by either Party of any right under the Agreement to cause the liquidation, termination or acceleration of the Transaction, because of a condition of the kind specified in Section 365(e)(1) of the Bankruptcy Code shall not be stayed, avoided, or otherwise limited by operation of any provision of the Bankruptcy Code or by order of a court or administrative agency in any proceeding under the Bankruptcy Code.       Additional Seller Representations:     The following additional paragraph 9(A), subsections (i) and (ii) shall  be inserted into the Agreement:             “9(A). Additional Representations and Notice.             (i) Seller Representations. Seller represents and warrants on and as of the date hereof and on and as of each date this Agreement or any Transaction remains outstanding:      36           (A)    No Prohibited Transactions.  Seller represents and warrants that Seller is not an “employee benefit plan” subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or a “plan” within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), and all investors in Seller acquire “publicly-offered securities” within the meaning of 29 CFR § 2510.3-101. Any subsequent permitted assignee of Seller will be deemed to have represented and warranted, that (i) no portion of the assets used by such assignee to either (x) acquire and hold the Class A Notes or (y) enter into or assume the obligations under the Transaction evidenced hereby constitutes the assets of any employee benefit plan subject to Title I of ERISA, a “governmental plan” within the meaning of Section 3(32) of ERISA, or a “plan” within the meaning of Section 4975(e)(1) of the Code or (ii) both the purchase and holding of such Class A Notes by such assignee and the assumption of the obligations under the Transaction evidenced hereby will constitute neither (x) a non-exempt “prohibited transaction” under (and as defined in) Section 406 of ERISA or Section 4975 of the Code nor (y) a similar violation under any applicable similar federal, state, local, non-U.S. or other law, rule or regulation.               (B)    Notice Requirement. Seller agrees to notify Buyer immediately if any time it learns or discovers facts at variance with the foregoing representations and warranties.”         (ii) Seller represents and warrants that its acquisition of the Class A Notes complied with the terms of the Indenture and Class A Notes.       Transfer; Assignment; Amendment;   Neither Buyer nor Seller will have the right to transfer, assign, amend, modify or supplement the Agreement or this Confirmation or any interest or obligation or right or benefit received in or under the Agreement or this Confirmation without the prior written consent of each party.       Additional Buyer Covenants:   Buyer shall at all times comply with the provisions of the Indenture applicable to holders of the Class A Notes and shall not sell or otherwise transfer the Class A Notes in violation of the provisions of the Indenture. Buyer represents and warrants that its acquisition of the Class A Notes complies with the terms of the Indenture and Class A Notes.          Disapplication and Modification of Provisions of the Annex I:   (a)  The following provisions of Annex I to the Agreement shall not apply to the Transaction evidenced by this Confirmation:              Parts 1(a), 1(b)(ii), 1(d), 1(f), 1(j), 1(m), 1(n), 2(b), 2(c), 2(i), 2(k), 2(r) and 2(s)(ii) of Annex I.           (b)  Notwithstanding Part 2(p)(iii) of Annex I to the Agreement, Buyer agrees to direct UBS Securities LLC (“UBSS”) to deliver all notices, demands and communications to be delivered to Seller on its behalf.           (c)  Buyer agrees and acknowledges that delivery by Seller of any notice to an address of Buyer shall be deemed to also constitute notice to UBSS for purposes of Part 2(p)(iii) of Annex I to the Agreement.    37     Counterparts Clause:   This Confirmation may be signed or executed in any number of counterparts, and by each Party on separate counterparts. Each counterpart is an original but shall not be effective until each Party has executed and delivered at least one counterpart. All counterparts together shall constitute one and the same instrument. This has the same effect as if the signatures on the counterparts were on a single original of this Confirmation. Delivery of an executed counterpart signature page of this Confirmation by email (portable document format (“pdf.”)) or facsimile copy shall be as effective as delivery of a manually executed counterpart of this Confirmation.       No effect, Inconsistency:   The terms set forth in the Confirmation for this trade shall apply only to the Transaction.       Buyer’s Bank Account Details:   Account Name: UBS AG, Stamford Branch     SWIFT BIC Code: 00000000       For the benefit of:           UBS AG, London Branch     SWIFT BIC Code: 00000000           Account No.: 100-00-00000-000       Seller’s Bank Account Details:   Account Name: Business Development Corporation of America           Bank Name: U.S. Bank N.A.           ABA# 000-000-000           Acct# 00000000000           FFC: 000000-000           Attn: Shiloh Bates/Bryan Cole/Chris Masterson       Notices:   If to Seller:           Address:  405 Park Avenue, Floor 3     New York, NY 10022     Attention: Shiloh Bates     Telephone: (212) 415-6500     Facsimile: (212) 421-5799     Email: [email protected]; [email protected]; [email protected]           If to Buyer:           As specified in the Annex to the Agreement.       38     Transformer Structure:   Upon Buyer receiving all necessary internal approvals for use of the “transformer” structure previously partially negotiated by the Parties in lieu of the Transaction evidenced hereby, the Parties agree to use commercially reasonable efforts to negotiate in good faith executable versions of the transaction documentation for such structure and all documentation necessary to terminate this Transaction and replace it with such structure.         Additional Defined Terms:   The following terms shall have the respective meanings specified below:       “Aggregate Outstanding Amount”, on any date with respect to the Class A Notes, has the meaning given to such term in the Indenture.           “Approved Dealer” shall mean each of Bank of America, N.A., Barclays Bank plc, BNP Paribas, Citibank, N.A., Credit Agricole S.A., Credit Suisse, Deutsche Bank AG, Goldman Sachs & Co., JPMorgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co., Royal Bank of Canada, Societe Generale, and The Royal Bank of Scotland plc; provided that (a) the Calculation Agent may at any time, upon written notice to Seller, delete any name from such list so long as such deletion is consistent with the general application of its internal credit policies with respect to such Approved Dealer and (b) the Calculation Agent and Seller may, at any time, agree in writing to add or remove an Approved Dealer to or from such list.             “Bond” has the meaning given to such term in the Indenture.           “Class A Notes” means the Class A Notes issued under the Indenture.           “Collateral Management Agreement” has the meaning given to such term in the Indenture.           “EBITDA” means, with respect to any Portfolio Asset and any period, (a) the meaning of the term “Adjusted EBITDA”, the term “EBITDA” or any comparable definition in the related Underlying Instrument (as defined in the Indenture) for such period and Portfolio Asset Obligor, as reported for such period pursuant to the related Underlying Instrument, and (b) in any case that the term “Adjusted EBITDA”, the term “EBITDA” or such comparable definition is not defined in such Underlying Instrument, the sum of (i) the consolidated net income for such period of the relevant Portfolio Asset Obligor on such Portfolio Asset, plus (ii) to the extent deducted in calculating such consolidated net income, the sum for such period of all income tax expense, interest expense, depreciation and amortization expense and all other non-cash charges, in the case of each of the foregoing clauses, as reported for such period pursuant to (and in accordance with the relevant definitions contained in) the related Underlying Instrument; provided that (x) the relevant Portfolio Asset Obligor referred to above in this definition shall be the Portfolio Asset Obligor for which consolidated financial statements are required to be delivered under the related Underlying Instrument (and, if there is more than one such Portfolio Asset Obligor, for the Portfolio Asset Obligor with the greatest consolidated aggregate indebtedness for borrowed money as of the last day of such period) and (y) if the Liquidation Agent (as defined in the Indenture) determines on a commercially reasonable basis that “Adjusted EBITDA” or “EBITDA” as reported for such period pursuant to the related Underlying Instrument is not computed in accordance with generally accepted financial practice for similar transactions, then “EBITDA” shall mean “Consolidated EBITDA” (determined on a consolidated basis based upon the Liquidation Agent’s selection in good faith of a definition of “Consolidated EBITDA” that accords with generally accepted financial practice) in relation to the relevant Portfolio Asset Obligor and its consolidated subsidiaries for such period.    39         “Equity Contribution Agreement” has the meaning given to such term in the Indenture.           “Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, European Union or the European Central Bank).           “Holder” has the meaning given to such term in the Indenture.             “Indenture” means the Second Amended and Restated Indenture dated as of June 6, 2016, amending and restating an Amended and Restated Indenture dated as of July 10, 2015, between BDCA Helvetica Funding, Ltd. and U.S. Bank National Association, as trustee, as further amended, supplemented or otherwise modified from time to time.           “Initial Margin Threshold” has the meaning given to such term in clause (a) of the definition of “Margin Threshold”.           “Interest Collection Subaccount” shall have the meaning given to such term in the Indenture.           “Interest Collections” shall have the meaning given to such term in the Indenture.           “Loan” has the meaning given to such term in the Indenture.          40         “Non-Liquid Loan” means any Portfolio Asset that, as of the applicable trade date of such Portfolio Asset, is a Loan that does not satisfy the conditions in clauses (i)(1)(x) and (i)(1)(y) in the “Zero-Value Designation Criteria” provisions above.             “Payment Account” shall have the meaning given to such term in the Indenture.           “Portfolio Asset” shall have the meaning given to such term in the Indenture.           “Portfolio Asset Obligor” shall have the meaning given to such term in the Indenture.           “Principal Collection Subaccount” shall have the meaning given to such term in the Indenture.           “Principal Collections” shall have the meaning given to such term in the Indenture.           “Subsequent Margin Threshold” has the meaning given to such term in clause (b) of the definition of “Margin Threshold”.   [signatures follow on the next page]    41     By executing this Confirmation and returning it to us, Seller confirms that the foregoing correctly sets out the terms of our agreement.   Yours faithfully   UBS AG, London Branch, In its individual capacity and as Calculation Agent   By: /s/ Trevor Spencer   Name: Trevor Spencer   Title: Authorized Signatory         By: /s/ Ben Stewart   Name: Ben Stewart   Title: Authorized Signatory      GMRA Confirmation           Confirmed as of the date first above written:   Business Development Corporation of America   By: /s/ James A. Fisher   Name: James A. Fisher   Title: President and COO     GMRA Confirmation                   

FORM 6-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Report of Foreign Issuer Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934 For the month of April 2013 Commission File Number 001-32399 BANRO CORPORATION (Translation of registrant’s name into English) 1 First Canadian Place 100 King Street West, Suite 7070 Toronto, Ontario, Canada M5X 1E3 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F Form 20-F o Form 40-F x Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): o Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders. Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): o Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. BANRO CORPORATION Date: April 16, 2013 ­/s/ Donat Madilo Donat Madilo Chief Financial Officer -2- INDEX TO EXHIBITS 99.1 Amended and Restated Security Agreement -3-

Exhibit 10.57 Certain confidential information contained in this document, marked by brackets as [***], has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. THIRD AMENDMENT TO CLINICAL CHEMISTRY ANALYZER AGREEMENT This Third Amendment to Clinical Chemistry Analyzer Agreement (the “Amendment”), entered into as of August 27th, 2019, modifies that certain Clinical Chemistry Analyzer Agreement between FUJIFILM Corporation and Heska Corporation, dated January 30, 2007, including its amendments by the First Amendment to Clinical Chemistry Analyzer Agreement dated April 1st, 2014 and the Second Amendment to Clinical Chemistry Analyzer Agreement dated April 1st, 2015 (collectively, “Original Agreement”). Capitalized terms not otherwise defined have the meanings ascribed to them in the Original Agreement. In the event of any conflict between the terms and conditions of the Original Agreement and this Amendment, the terms and conditions of this Amendment shall control. The headings in this Amendment are included for purposes of convenience only and shall not affect the construction or interpretation of its provisions. WITNESSETH: WHEREAS, Fuji and Heska entered into the Original Agreement in which Heska was appointed an exclusive distributor of Products in the Territory subject to the terms and conditions of the Original Agreement; WHEREAS, Fuji and Heska desire to amend the terms and conditions of the Original Agreement as set forth herein. contained herein, and upon the terms and subject to the conditions set forth below, Heska and Fuji hereby agree as follows: AGREEMENT: 1. Element DC5X Analyzer. A new Section 1.27 consisting of the following shall be added to the Original Agreement: 1.27 “Element DC5X Analyzer” shall mean a Dri-Chem NX 700 (HESKA CAT No. 6611 / Fuji’s Material No : 16575966) which is an OEM product supplied by Fuji to Heska. 2. Target Purchase Quantity. A new Section 1.28 consisting of the following shall be added to the Original Agreement:      1.28 “Target Purchase Quantity” shall mean an annual target quantity of the Element DC5X Analyzers to be purchased by Heska from Fuji in each Fiscal Year. The Target Purchase Quantity shall be [***] Element DC5X Analyzers. 3. Actual Purchase Quantity. A new Section 1.29 consisting of the following shall      1.29 “Actual Purchase Quantity” shall mean an annual actual quantity of the Element DC5X Analyzers purchased by Heska from Fuji in each Fiscal Year. For the avoidance of doubt, the Actual Purchase Quantity shall be included in the count of the quantity of the Analyzers purchased by Heska from Fuji which shall be the basis for determining whether or not Heska meets the Minimum Commitment under Section 1.26. 4. Target Award. A new Section 1.30 consisting of the following shall be added to the Original Agreement:      1.30 “Target Award” shall mean an award to be paid by Fuji to Heska in case of achievement by Heska of the Target Purchase Quantity. 5. Affected Products. A new Section 1.31 consisting of the following shall be added to the Original Agreement: 1.31 “Affected Products” shall mean the Products of which manufacturing location has been changed from Yokohama, Japan to Ho Chi Minh City, Vietnam due to Fuji’s circumstances. 6. Reimbursement Balance. A new Section 1.32 consisting of the following shall be 1.32 “Reimbursement Balance” shall mean the balance between (i) the transportation cost that Heska would have incurred if the Affected Products had been shipped from Yokohama, Japan and (ii) the actual transportation cost incurred by Heska in connection with shipment of the Affected Products, to be paid by Fuji to Heska in accordance with Section 4.15. 7. Actual Shipment Quantity. A new Section 1.33 consisting of the following shall 1.33 “Actual Shipment Quantity” shall mean an actual quantity of the Affected Products shipped by Fuji to the shipping destination designated by Heska in each six month period. 8. Transportation Cost Balance. A new Section 1.34 consisting of the following shall be added to the Original Agreement: 1.34 “Transportation Cost Balance” shall mean the balance per dimensional weight in U.S. dollars between (i) a transportation fee that would be charged according to the applicable total cost set forth in the paragraph (e) of Section 4.15 if the Affected Products were shipped from Yokohama, Japan to Heska’s warehouse at Iowa, the U.S. as shipping destination and (ii) a transportation fee that is charged according to such total cost if the Affected Products are shipped from Ho Chi Minh City, Vietnam to such warehouse. 9. Payment of Target Award. A new Section 3.7 consisting of the following shall be 3.7 Payment of Target Award. In the event that Heska achieves the Target Purchase Quantity, Fuji shall pay to Heska the Target Award, which shall be equivalent to the amount calculated by multiplying the Actual Purchase Quantity by [***]. The Target Award shall be paid in accordance with the following procedures: (a) Within thirty (30) days after the end of each Fiscal Year, Fuji shall notify, in writing, Heska of (i) the Actual Purchase Quantity in the Fiscal Year and (ii) the amount of the Target Award calculated on the basis of such Actual Purchase Quantity in accordance with the calculation method above (the “Preliminary Target Award”, and collectively with (i) the Actual Purchase Quantity in the Fiscal Year, the “Actual Purchase Quantity, Etc”). (b) Within thirty (30) days after receipt by Heska of the notice set forth in the paragraph (a) above (the “Award Opposition Period”), Heska shall notify, in writing, Fuji of (i) whether or not Heska approves the Actual Purchase Quantity, Etc described in such notice and (ii) grounds for Heska’s disapproval to the Actual Purchase Quantity, Etc if Heska does not approve. If Heska fails to notify, in writing, Fuji thereof for the Award Opposition Period, Heska shall be deemed to approve the Actual Purchase Quantity, Etc upon expiration of the Award Opposition Period. The notice of Heska’s disapproval to the Actual Purchase Quantity, Etc shall be sent to Fuji along with documents supporting such disapproval. (c) In the event of (i) receipt by Fuji of the notice of Heska’s approval to the Actual Purchase Quantity, Etc or (ii) Heska being deemed to approve the Actual Purchase Quantity, Etc in accordance with the paragraph (b) above, the Target Award shall be fixed as the amount of the Preliminary Target Award upon such receipt or being deemed, as the case may be, and Fuji shall pay such amount to Heska within thirty (30) days after such fixation as long as such amount is greater than zero (0). (d) In the event of receipt by Fuji of the notice of Heska’s disapproval to the Actual Purchase Quantity, Etc and documents supporting such disapproval, Fuji and Heska shall discuss in good faith in order to eliminate the gap in perception concerning the Actual Purchase Quantity, Etc between Fuji and Heska. (e) Fuji will issue Heska a credit to Fuji’s Heska account (the “Discount Credit”), the Discount Credit shall be used by Heska and accepted by Fuji as payment against any Heska purchase amount of Products due Fuji, or if no amount is then due, shall cause Fuji to issue to Heska a cash refund payable to Heska by wire transfer from Fuji. 10. Delivery of Product. Section 4.9 of the Original Agreement is hereby deleted in 4.9 Delivery of Product; Determination of Method of Transportation. Products shall be delivered FCA (Incoterms 2010) Fuji’s warehouse at Yokohama, Japan or Ho Chi Minh City, Vietnam, except for any Product made in China, which shall be DDP (Incoterms 2010) Heska's USA warehouse specified on each Purchase Order. For Products delivered FCA Fuji’s warehouse at Yokohama, Japan or Ho Chi Minh City, Vietnam, (i) the method of transportation of the Products, shipping destination, the carrier selected and other matters concerning transportation as may be required by Fuji shall be as specified by Heska in its purchase orders, and (ii) packaging specifications of the Products shall be those specified in Exhibit 4.9. Notwithstanding the foregoing, regarding the consumable Products, Heska agrees and acknowledges that Fuji has an allowance of [***] of the quantity of delivered Products than ordered quantity in the firm purchase order. In addition to the requirements set forth in Section 4.1, all consumable Products which has the term of validity (i.e., expiration date) shall be delivered by Fuji within [***] from the date of manufacturing such consumable Products. 11. Payment of Reimbursement Balance. A new Section 4.15 consisting of the following 4.15 Payment of Reimbursement Balance. With respect to the Affected Products, Fuji shall pay to Heska the Reimbursement Balance, which shall be equivalent to the amount calculated by multiplying the Actual Shipment Quantity by the Transportation Cost Balance; provided, however, that, in the event of any change to the total cost set forth in the paragraph (e) below, the Reimbursement Balance shall be equivalent to the amount calculated by multiplying the Actual Shipment Quantity after such change by the Transportation Cost Balance from the date of such change. The Reimbursement Balance shall be paid in accordance with the following procedures: (a) Within thirty (30) days after April 1 and October 1 of each Fiscal Year, Fuji shall notify, in writing, Heska of (i) the Actual Shipment Quantity in the preceding six month period, (ii) the Transportation Cost Balance in the preceding six month period and (iii) the amount of the Reimbursement Balance calculated on the basis of such Actual Shipment Quantity and such Transportation Cost Balance for the preceding six month period, in accordance with the calculation method above (the “Preliminary Reimbursement Balance”, and collectively with (i) the Actual Shipment Quantity in the six month period and (ii) the Transportation Cost Balance, the “Actual Shipment Quantity, Etc”). (b) paragraph (a) above (the “Reimbursement Opposition Period”), Heska shall notify, in writing, Fuji of (i) whether or not Heska approves the Actual Shipment Quantity, Etc described in such notice and (ii) grounds for Heska’s disapproval to the Actual Shipment Quantity, Etc if Heska does not approve. If Heska fails to notify, in writing, Fuji thereof for the Reimbursement Opposition Period, Heska shall be deemed to approve the Actual Shipment Quantity, Etc upon expiration of the Reimbursement Opposition Period. The notice of Heska’s disapproval to the Actual Shipment Quantity, Etc shall be sent to Fuji along with documents supporting such disapproval. (c) Actual Shipment Quantity, Etc or (ii) Heska being deemed to approve the Actual Shipment Quantity, Etc in accordance with the paragraph (b) above, the Reimbursement Balance shall be fixed as the amount of the Preliminary Reimbursement Balance upon such receipt or being deemed, as the case may be, and Fuji shall pay such amount to Heska within thirty (30) days after such fixation as long as such amount is greater than zero (0). (d) Actual Shipment Quantity, Etc and documents supporting such disapproval, Fuji perception concerning the Actual Shipment Quantity, Etc between Fuji and Heska. (e) In the event of any change, of the carrier designated by Heska, or to the carrier’s total cost showing a transportation fee in U.S. dollars determined by a measured rate system, Heska shall notify Fuji thereof as soon as practically possible. 12. LIST OF EXHIBITS. LIST OF EXHIBITS of the Original Agreement is hereby deleted in its entirety and replaced with LIST OF EXHIBITS attached hereto. 13. Exhibit 1.13. Exhibit 1.13 of the Original Agreement is hereby deleted in its entirety and replaced with Exhibit 1.13 attached hereto. 14. Exhibit 4.9. Exhibit 4.9 attached hereto shall be added to the Original Agreement. 15. No Other Changes. Except as expressly modified by this Amendment, all other provisions of the Original Agreement shall remain in full force and effect, as amended hereby. IN WITNESS WHEREOF, the parties have executed this Amendment by their duly authorized representatives effective as of the last date on which this Amendment has been duly signed by both parties. SIGNED: Heska Corporation By:    /s/Nancy Wisnewski         FUJIFILM Corporation By:       [***]            Name:   Nancy Wisnewski         Name: [***]   Title: [***] Date:      09/04/2019      Date:   10/23/2019         LIST OF EXHIBITS 1.13        Products and Purchase Prices 4.9        Packaging Specifications of the Products 1